Decision 2388Ma – City of Palo Alto

SF-CE-869-M

Decision Date: April 10, 2017

Decision Type: PERB Decision

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Perc Vol: 41
Perc Index: 162

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

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. It does not divest the Board of jurisdiction to determine whether a public agency violated MMBA section 3507 by failing to consult in good faith before adopting rules and regulations concerning interest arbitration. The extent to which local regulation of employment matters as prescribed by the charter might be superseded by matters of statewide concern as set out in the MMBA is a matter properly decided in the first instance, by PERB.

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

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. It does not divest the Board of jurisdiction to determine whether a public agency violated MMBA section 3507 by failing to consult in good faith before adopting rules and regulations concerning interest arbitration. 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.

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 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 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.

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

Although interest arbitration is not within the scope of representation under MMBA section 3504, 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. 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. Before adopting rules and regulations under 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. In its answer to a complaint alleging that the agency violated the MMBA by failing or refusing to consult in good faith, the agency may raise the affirmative defense that the charging party waived its consultation right under MMBA section 3507. 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. A compelling operational necessity may justify an employer acting unilaterally before completing its obligation to consult in good faith before adopting rules and regulations under MMBA section 3507. 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.

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

Although interest arbitration is not within the scope of representation under MMBA section 3504, 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. 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.

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

Questions of statutory interpretation are not a proper subject for expert witness testimony.

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

The appropriate remedy for a violation of the duty to consult under section 3507 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.