Decision 1766M – City of Monterey
SF-CE-128-M
Decision Date: May 20, 2005
Decision Type: PERB Decision
Description: Local 270 alleged that the city unlawfully denied a unit employee his right to have his Local 270 field representative represent him at a termination hearing and unlawfully excluded the representative from the hearing.
Disposition: The Board found that the city unlawfully excluded the union representative from the city counsel closed termination hearing. That the representative might have been a witness is irrelevant under the MMBA, particularly when the city’s representative and chief witness was present in the hearing. The city unlawfully designated the union’s attorney as the employee’s representative.
Perc Vol: 29
Perc Index: 130
Decision Headnotes
102.02000 – Concurrent or Conflicting Jurisdiction with Other Agencies or Courts; Interpretation or Enforcement of Other Statutes
Opinions of the Attorney General are not biding on the Board for purposed of interpreting the MMBA. Requirements of the Brown Act do not necessarily trump rights under MMBA.
201.02000 – Agents (See also 1400)
The City Council in this matter is not a “neutral decider of cases,” but rather acted as an agent of the City and responsible for the City’s actions.
300.12000 – Insistence on Union Representation
Trujillo, the unit employee, engaged in protected conduct under MMBA section 3502 when it designated McCormick, the Local 270 field representative, as his representative during his termination hearing before the City Council. McCormick, the Local 270 field representative, engaged in protected conduct under MMBA section 3503 when he attempted act as Trujillo’s (the unit employee) representative in his capacity as a representative of a recognized employee organization. The City unlawfully designated the union’s attorney as Trujillo’s representative. It is well-established that an employee organization has the right to designate its own representatives in dealing with the employer. The MMBA precludes the Brown Act restriction of employee organization representatives imposed by the City Council. Even under a reasonableness standard, excluding McCormick while permitting the City’s representative and chief witness to remain in the hearing was unreasonable.
300.17000 – Other
Trujillo, the unit employee, engaged in protected conduct under MMBA section 3502 when it designated McCormick, the Local 270 field representative, as his representative during his termination hearing before the City Council. McCormick, the Local 270 field representative, engaged in protected conduct under MMBA section 3503 when he attempted act as Trujillo’s (the unit employee) representative in his capacity as a representative of a recognized employee organization. The City unlawfully designated the union’s attorney as Trujillo’s representative. It is well-established that an employee organization has the right to designate its own representatives in dealing with the employer. The MMBA precludes the Brown Act restriction of employee organization representatives imposed by the City Council. Even under a reasonableness standard, excluding McCormick while permitting the City’s representative and chief witness to remain in the hearing was unreasonable.
408.01000 – In General
The City unlawfully designated the union’s attorney as Trujillo’s representative. It is well-established that an employee organization has the right to designate its own representatives in dealing with the employer. The MMBA precludes the Brown Act restriction of employee organization representatives imposed by the City Council. Even under a reasonableness standard, excluding McCormick while permitting the City’s representative and chief witness to remain in the hearing was unreasonable.
409.01000 – Business Necessity
The City’s exclusion of McCormick from the hearing was not justified by either an alleged violation of the Brown Act or the City’s designation of McCormick as a witness. While it is true that the City Code provides for applicability of the Brown Act and the City’s discretion to sequester witnesses, that discretion does not automatically trump MMBA rights. The authority is permissive and such authority may not be exercised in a manner that violates the rights of employees or employee organizations under the MMBA. The plain language of the City’s Code states that formal rules of evidence do not apply to disciplinary hearings so that the City’s citation of Evidence Code section 777 as support for excluding McCormick from the hearing was unpersuasive. The City excluded McCormick while permitting the City’s representative and chief witness to remain in the hearing. The City Council in this matter is not a “neutral decider of cases,” but rather acted as an agent of the City and responsible for the City’s actions.
409.04000 – Union or Employee Misconduct
This case is distinguishable from Upland Police Officers Association et al. v. City of Upland (2003) 111 Cal. App. 4th 1294 [4 Cal. Rptr. 3d 629], in which the union attorney for a police officer postponed several meetings before the police department informed the officer that he could select another representative. In the instant matter, McCormick did not seek to postpone the hearing or otherwise interfere with the hearing but rather to remain in the hearing as a representative. The City’s concern that the union’s request for multiple representatives might prove disruptive is highly exaggerated and not a valid basis for interfering with protected rights.
1400.02000 – Employer Responsibility
The City Council in this matter is not a “neutral decider of cases,” but rather acted as an agent of the City and responsible for the City’s actions.