Decision 2388M – City of Palo Alto * * * SUPERCEDED by City of Palo Alto (2017) PERB Decision No. 2388a-M

SF-CE-869-M

Decision Date: August 6, 2014

Decision Type: PERB Decision

 * * * SUPERCEDED by City of Palo Alto (2017) PERB Decision No. 2388a-M * * * 

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Perc Vol: 39
Perc Index: 25

Decision Headnotes

100.00000 – PERB: OPERATION, JURISDICTION, AUTHORITY; OPERATION OF EERA, DILLS (SEERA), HEERA
100.01000 – In General

PERB’s jurisdiction arises under MMBA section 3509(b), which provides: A complaint alleging any violation of this chapter or of any rules and regulations adopted by a public agency pursuant to section 3507 or 3507.5, shall be processed as an unfair practice charge by the Board. 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.

101.00000 – PERB: OPERATION, JURISDICTION, AUTHORITY; APPLICABILITY OF AND CONFLICTS WITH OTHER STATUTES
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.

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

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 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. Duties imposed by the MMBA on charter cities to meet and confer with employee organizations do not conflict with the exercise by charter cities of their rights under California’s Constitution to propose charter amendments, and accordingly that charter cities must comply with their MMBA duties as to matters subject thereto even where a charter amendment may be the ultimate form of the charter city’s action. 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.) 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. We do not believe our remedial authority extends to ordering the results of an effective municipal election to be overturned. Such remedy lies with the courts.

103.00000 – PERB: OPERATION, JURISDICTION, AUTHORITY; CONSTITUTIONALITY OF EERA, DILLS, HEERA
103.01000 – In General

Duties imposed by the MMBA on charter cities to meet and confer with employee organizations do not conflict with the exercise by charter cities of their rights under California’s Constitution to propose charter amendments, and accordingly that charter cities must comply with their MMBA duties as to matters subject thereto even where a charter amendment may be the ultimate form of the charter city’s action.

103.00000 – PERB: OPERATION, JURISDICTION, AUTHORITY; CONSTITUTIONALITY OF EERA, DILLS, HEERA
103.03000 – State Issues

Duties imposed by the MMBA on charter cities to meet and confer with employee organizations do not conflict with the exercise by charter cities of their rights under California’s Constitution to propose charter amendments, and accordingly that charter cities must comply with their MMBA duties as to matters subject thereto even where a charter amendment may be the ultimate form of the charter city’s action.

104.00000 – PERB: OPERATION, JURISDICTION, AUTHORITY; STATUTORY AUTHORITY OF BOARD
104.01000 – Authority of Board In General; Validity and Application of Regulations (See also 102.01)

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.

602.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION)
602.01000 – In General

MMBA section 3507 prescribes a different scope of consultation from that under section 3505, because in section 3507, the Legislature stated with particularity those subjects for consultation. A policy change subject to the duty to meet and confer and implemented without meeting and conferring, is a fait accompli, which, if left in place, would compel the union to “bargain back” to the status quo and make impossible the give and take that are the essence of good faith consultation. A party seeking to meet and confer initiates the process by making a request therefor. The request need not be stated in particular terms, but must place the responding party on notice of the subject over which discussions are sought. The requirement of a request to bargain was a low threshold, designed not for gamesmanship, but merely to assure that an employer would not be found in violation of its statutory duty to negotiate in the absence of notice that its employees through their representatives desired to bargain. It is ultimately the employer’s awareness of an employee organization’s desire to bargain which is crucial. While typically we infer such awareness, or lack thereof, from the words used in the employee organization’s negotiating demand, such awareness may exist apart from the employee organization’s demand. In such a case, it is appropriate to enforce the employer’s duty to negotiate notwithstanding the words chosen by the organization. Whether an employer is aware of an employee organization’s desire to bargain is to be determined from the facts on a case-by-case basis. Where an employer believes that the subject over which an employee organization desires to meet and confer exceeds the employer’s duty to meet and confer, or an employer is otherwise in doubt as to its meet and confer obligation, the employer must seek clarification. Such clarification should occur within the meet and confer process, not merely by the exchange of legal positions through correspondence or in comments between party representatives at public meetings of the governing authority of the agency. Upon receiving the union’s request or becoming aware of the union’s wish to meet, the City’s obligation was to offer to meet and discuss the City’s position that the issue on which the union sought to meet was beyond the scope of representation. A party subject to the duty to meet and confer in good faith must fulfill its duty to meet and confer in good faith before changing a matter within the scope of representation. A party subject to the duty to meet and confer in good faith may not resort to “self-help” until after exhausting its meet and confer duty. In The People ex rel. Seal Beach Police Officers Association et al., v. City of Seal Beach et al. (1984) 36 Cal.3d 591, the Supreme Court held that the MMBA duty to meet and confer in good faith is a matter of statewide concern and as such prevails over local enactments of a charter city concerning matters that might otherwise be deemed a strictly municipal affair. In The People ex rel. Seal Beach Police Officers Association et al., v. City of Seal Beach et al. (1984) 36 Cal.3d 591, the court reasoned that a charter city employer could not avoid its MMBA meet and confer obligations by exercise of its right to propose charter amendments. Rather, a charter city, like the City here, must comply with its MMBA obligation before referring to voters for approval of a ballot measure on a subject over which the charter city was obliged by MMBA to meet and confer.

607.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DUTY TO CONSULT
607.01000 – In General

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. 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. In MMBA section 3507, the Legislature stated with particularity those matters a public agency may include in its rules and regulations for administration of employer employee relations, and over which it must consult. We deem these matters to be “mandatory subjects” for consultation pursuant to section 3507(a). A public agency’s decision to modify or repeal interest arbitration procedures contained in its rules and regulations for administration of employer employee relations, is subject to the public agency’s consultation duty pursuant to MMBA section 3507, even though a public agency may decline lawfully to meet and confer under section 3505 over a proposal to include an interest arbitration provision in an MOU governing wages, hours and other terms and conditions of employment of agency employees. The City was aware that the union sought to meet with City representatives to discuss the City’s proposed changes to the interest arbitration procedures in the City’s rules and regulations for the administration of employer-employee relations. That being so, we conclude further that the City was obliged to meet with representatives of the union, either to discuss and exchange proposals regarding the City’s proposed changes to the interest arbitration procedures or to clarify the City’s position that the proposed changes to its interest arbitration procedures were a permissive subject of meeting and conferring. By failing to offer to meet with the union’s representatives, the City violated its consultation duty under MMBA section 3507. Like the City’s duty to meet and confer in good faith under MMBA section 3505, its duty to consult in good faith under section 3507 is not satisfied merely by permitting organizational representatives to exercise rights accorded to members of the public to address the Council, or its Policy and Services Standing Committee, in a public session. Absent a valid defense, a party subject to the good faith duty to consult pursuant to MMBA section 3507 must defer action on matters subject to its consultation duty pending exhaustion thereof. An agency may raise affirmative defenses to a complaint alleging that the agency violated the MMBA by failing or refusing to consult in good faith, including the defense that the charging party waived its consultation right under MMBA section 3507. An agency may raise affirmative defenses to a complaint alleging that the agency violated the MMBA by failing or refusing to consult in good faith, including the defense that the charging party waived its consultation right under MMBA section 3507.

608.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES
608.01000 – In General

An agency may raise affirmative defenses to a complaint alleging that the agency violated the MMBA by failing or refusing to consult in good faith, including the defense that the charging party waived its consultation right under MMBA section 3507.

608.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES
608.03000 – Business Necessity; Employer Financial Position

A compelling operational necessity may justify an employer acting unilaterally before completing its bargaining obligation. The employer must demonstrate “an actual financial emergency which leaves no real alternative to the action taken and allows no time for meaningful negotiations before taking action. An employer may implement a change prior to completion of bargaining on the effects of a non-negotiable decision but only where: (1) the implementation date was not arbitrary, but based on an immutable externally-established deadline, or on an important managerial interest such that delay beyond the chosen date would undermine the employer’s right to make the decision at all; (2) the employer gave the union notice of the decision and implementation date sufficiently in advance of the implementation date to allow for meaningful meeting and conferring prior to the implementation; and (3) the employer met and negotiated in good faith on implementation and effects prior to the implementation, and thereafter as to those subjects not resolved by virtue of the implementation.

608.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES
608.07000 – Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession

An agency may raise affirmative defenses to a complaint alleging that the agency violated the MMBA by failing or refusing to consult in good faith, including the defense that the charging party waived its consultation right under MMBA section 3507. An exclusive representative may waive its right to bargain over a matter within the scope of representation. Waiver is an affirmative defense, is disfavored and must be clear and unmistakable. An employer raising a waiver defense must establish that: (1) it provided the employee organization clear and unequivocal notice that it would act on a matter, and (2) the employee organization clearly, unmistakably and intentionally relinquished its right to meet and confer in good faith.

750.00000 – EMPLOYER ADOPTION/ENFORCEMENT OF UNREASONABLE RULE
750.01000 – In General

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. PERB’s jurisdiction arises under MMBA section 3509(b), which provides: A complaint alleging any violation of this chapter or of any rules and regulations adopted by a public agency pursuant to section 3507 or 3507.5, shall be processed as an unfair practice charge by the Board. 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. In MMBA section 3507, the Legislature stated with particularity those matters a public agency may include in its rules and regulations for administration of employer employee relations, and over which it must consult. We deem these matters to be “mandatory subjects” for consultation pursuant to section 3507(a). Where a charter city without prior good faith consultation acts unilaterally to adopt or amend its rules and regulations for the administration of employer employee relations, whether the unilateral action is direct by adoption of an ordinance or indirect by referring a charter amendment for voter approval, the unilateral action violates MMBA section 3507 and gives rise under section 3509 to the Board’s authority as described in EERA section 3541.5 “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.” 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.

1000.00000 – SCOPE OF REPRESENTATION
1000.01000 – In General; Test for Subjects Not Specifically Enumerated

MMBA section 3507 prescribes a different scope of consultation from that under section 3505, because in section 3507, the Legislature stated with particularity those subjects for consultation. 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. County of Santa Clara (2010) PERB Decision No. 2114-M; County of Santa Clara (2010) PERB Decision No. 2120-M; DiQuisto v. County of Santa Clara (2010) 181 Cal.App.4th 236; and City of Fresno v. the People ex rel. Fresno Firefighters, IAFF Local 753, et al. (1999) 71 Cal.App.4th 82 do not provide guidance for our construction of section 3507 regarding a public agency’s duty to consult in good faith. In MMBA section 3507, the Legislature stated with particularity those matters a public agency may include in its rules and regulations for administration of employer employee relations, and over which it must consult. We deem these matters to be “mandatory subjects” for consultation pursuant to section 3507(a). Where an employer believes that the subject over which an employee organization desires to meet and confer exceeds the employer’s duty to meet and confer, or an employer is otherwise in doubt as to its meet and confer obligation, the employer must seek clarification. Such clarification should occur within the meet and confer process, not merely by the exchange of legal positions through correspondence or in comments between party representatives at public meetings of the governing authority of the agency. Upon receiving the union’s request or becoming aware of the union’s wish to meet, the City’s obligation was to offer to meet and discuss the City’s position that the issue on which the union sought to meet was beyond the scope of representation. By failing to offer to meet with the union’s representatives, the City violated its consultation duty under section 3507.

1100.00000 – CASE PROCESSING PROCEDURES; CHARGE
1100.01000 – In General/Prima Facie Case

PERB’s jurisdiction arises under MMBA section 3509(b), which provides: A complaint alleging any violation of this chapter or of any rules and regulations adopted by a public agency pursuant to section 3507 or 3507.5, shall be processed as an unfair practice charge by the Board.

1101.00000 – CASE PROCESSING PROCEDURES; LIMITATION PERIOD FOR FILING CHARGE
1101.01000 – In General

PERB regulations clothe an ALJ with the power and duty to: “inquire fully into all issues and obtain a complete record upon which the decision can be rendered;” (PERB Reg. 32170(a).) “regulate the course and conduct of the hearing;” (PERB Reg. 32170(d)) “rule on objections, motions and question of procedure;” (PERB Reg. 32170(f)) and “take evidence and rules on the admissibility of evidence.” (PERB Reg. 32170(h).) Moreover, in unfair practice cases, “immaterial, irrelevant, or unduly repetitious evidence may be excluded.” (PERB Reg. 32176.

1104.00000 – CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ
1104.01000 – In General; Conduct of Hearing

PERB regulations clothe an ALJ with the power and duty to: “inquire fully into all issues and obtain a complete record upon which the decision can be rendered;” (PERB Reg. 32170(a).) “regulate the course and conduct of the hearing;” (PERB Reg. 32170(d)) “rule on objections, motions and question of procedure;” (PERB Reg. 32170(f)) and “take evidence and rules on the admissibility of evidence.” (PERB Reg. 32170(h).) Moreover, in unfair practice cases, “immaterial, irrelevant, or unduly repetitious evidence may be excluded.” (PERB Reg. 32176.)

1105.00000 – CASE PROCESSING PROCEDURES; EVIDENCE
1105.09000 – Opinion Evidence and Expert Testimony

Neither Evidence Code section 801 nor PERB regulations support the City’s proffer of, and request for a continuance to adduce, expert witness testimony. Evidence Code section 801 provides, in pertinent part: If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is: (a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact; and (b) Based on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion. The proffered expert testimony was not appropriate under Evidence Code section 801 (a). The question before the ALJ was the statutory construction of MMBA section 3507, as to which the City’s proffered expert testimony was neither “material” nor “relevant” within PERB Regulation 32176. Therefore, the ALJ properly excluded the proffered expert testimony and did not abuse his discretion thereby.

1200.00000 – REMEDIES FOR UNFAIR PRACTICES; CEASE AND DESIST ORDERS
1200.01000 – In General

Our traditional remedy in a unilateral change case is a cease and desist order, coupled with affirmative relief consisting of an order to restore the prior status quo and an order to meet and confer upon request. The appropriate remedy for a violation of the duty to consult is akin to the remedy for a violation of the duty to meet and confer, viz., a cease and desist order, coupled with affirmative relief consisting of an order to restore the status quo and an order to consult in good faith upon request. Where a charter city without prior good faith consultation acts unilaterally to adopt or amend its rules and regulations for the administration of employer employee relations, whether the unilateral action is direct by adoption of an ordinance or indirect by referring a charter amendment for voter approval, the unilateral action violates MMBA section 3507 and gives rise under section 3509 to the Board’s authority as described in EERA section 3541.5, “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.”

1205.00000 – REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS
1205.07000 – Restoration of Status Quo

A policy change subject to the duty to meet and confer and implemented without meeting and conferring, is a fait accompli, which, if left in place, would compel the union to “bargain back” to the status quo and make impossible the give and take that are the essence of good faith consultation. The appropriate remedy for a violation of the duty to consult is akin to the remedy for a violation of the duty to meet and confer, viz., a cease and desist order, coupled with affirmative relief consisting of an order to restore the status quo and an order to consult in good faith upon request. Where a charter city without prior good faith consultation acts unilaterally to adopt or amend its rules and regulations for the administration of employer employee relations, whether the unilateral action is direct by adoption of an ordinance or indirect by referring a charter amendment for voter approval, the unilateral action violates MMBA section 3507 and gives rise under section 3509 to the Board’s authority as described in EERA section 3541.5, “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.” We do not believe our remedial authority extends to ordering the results of an effective municipal election to be overturned. Such remedy lies with the courts.