Decision 1766M – City of Monterey

SF-CE-128-M

Decision Date: May 20, 2005

Decision Type: PERB Decision

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Perc Vol: 29
Perc Index: 130

Decision Headnotes

102.00000 – PERB: OPERATION, JURISDICTION, AUTHORITY; SCOPE OF PERB JURISDICTION
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.

201.00000 – PARTIES; DEFINITIONS; WHO IS AN EMPLOYER?
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.

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
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.

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
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.

408.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS
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.

409.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES
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.

409.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES
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.

1400.00000 – GENERAL LEGAL PRINCIPLES; AGENCY
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.