EMPLOYER VIOLATION OF LOCAL RULE – In General

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When interpreting the San Francisco Charter to discern whether it exempts a proposal from interest arbitration, the “primary guide” is the Charter’s “plain meaning.” (San Francisco Fire Fighters Local 798 v. City and County of San Francisco (2006) 38 Cal.4th 653, 671.) The City’s argument that attorneys’ job protection proposals were not amenable to interest arbitration is at odds with the Charter’s language. San Francisco Charter section A8.409-4, which provides for interest arbitration, is a local agency rule on resolution of bargaining disputes. Charter section A8.409-4 includes narrow exceptions which show that the Charter drafters were fully aware how to remove matters from interest arbitration, and in fact did so for a limited set of disciplinary matters—those related to police officers, deputy sheriffs, and firefighters---but there is no exclusion for attorney discipline. (pp. 15, 18.) The plain language of a second provision, Charter section A8.409-3, declares the City must “bargain in good faith on all matters within the scope of representation as defined by [MMBA] section 3504, relating to the wages, hours, benefits and other terms and conditions of [City] employment, including . . . agreements to provide binding arbitration of discipline and discharge.” (Emphasis supplied.) The carve-out from section A8.409-3 for employees and certain matters that fall under the civil service merit system does not exclude the explicitly included topic of “binding arbitration of discipline and discharge.” Thus, even if attorneys fell within the merit system, which they do not, the City could not argue that there was a carve-out for the attorneys’ job protection proposals. Moreover, the carve-out provides that the civil service commission (CSC) is the bargaining entity for those matters falling under the carve-out, and the City never referred the union’s job protection proposals to the CSC or suggested that the union do so. Rather, the City’s negotiators bargained over the job protection proposals, further confirming that such proposals do not fall within the CSC carve-out. (pp. 19-23.)