Decision 2540M – City and County of San Francisco * * * VACATED IN PART by City and County of San Francisco (2019) PERB Decision No. 2540a-M

SF-CE-827-M

Decision Date: October 20, 2017

Decision Type: PERB Decision

 * * * VACATED IN PART by City & County of San Francisco (2019) PERB Decision No. 2540a-M * * *

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Perc Vol: 42
Perc Index: 50

Decision Headnotes

100.00000 – PERB: OPERATION, JURISDICTION, AUTHORITY; OPERATION OF EERA, DILLS (SEERA), HEERA
100.03000 – Purpose of the Act

One of the central purposes of the MMBA is to promote full communication between public employers and their employees by providing a reasonable method of resolving disputes regarding wages, hours, and other terms and conditions of employment. California law is consistent with federal labor precedent in confining legislation on collective bargaining to the procedural aspects of the process, rather than dictating the substantive terms of the parties’ agreement.

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

The home rule doctrine reserves to charter cities the right to adopt and enforce ordinances, provided the subject of the regulation is a municipal affair rather than a subject of statewide concern. The process of collective bargaining and the rights of employees and their organizations secured by the MMBA and the uniform application of that statute are matters of statewide concern. Thus, the home rule doctrine does not permit a charter city to enact or enforce a local ordinance that conflicts or is inconsistent with the intent or purpose of the MMBA.

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

A violation based on the adoption or enforcement of an unreasonable regulation requires, as a threshold matter, a showing that the local rule or regulation abridges the exercise of a fundamental right, or frustrates the fulfillment of an affirmative duty, prescribed by the MMBA. A showing of discriminatory intent is not required to establish that a local rule is unreasonable. An interest arbitration procedure that subjects the employee organization’s proposals on certain subjects to a higher standard of proof than those of the employer places a thumb on the scale in favor of the employer’s proposals, and is not a reasonable local rule. Local rule invalidating side letters and past practices not approved in writing by certain officials is unreasonable because it results in a unilateral change in working conditions. MMBA section 3505.1, providing that an MOU is not binding until adopted by the public agency’s governing board, was not intended to upend longstanding principles of labor law, such as the past practice doctrine or that terms and conditions of employment survive the expiration of an MOU, absent agreement to the contrary. The fact that a requirement has previously been incorporated into an MOU does not allow a public agency to enshrine it in a local rule.

1105.00000 – CASE PROCESSING PROCEDURES; EVIDENCE
1105.06000 – Hearsay

A finding may be based on hearsay statements by respondent’s representatives, which are considered admissions by a party.

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.04000 – Unalleged Violations

Respondent had adequate notice and an opportunity to defend where charging parties mentioned issue in their opening statement, argued it in their briefs, and respondent’s reply brief responded to the argument on its merits, without objecting that it was an unalleged violation. Respondent raised its unalleged violation objection only in its exceptions to the Board.

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

The appropriate remedy for a city charter provision that is an unreasonable local rule under MMBA section 3507 is to declare that provision void and unenforceable. The Board lacks the power to order the provision to be rescinded. In determining which provisions of a local rule are invalid, a severability clause establishes a presumption in favor of severance. However, in order to honor the severance clause, the portion to be severed and thus saved from invalidity depends on whether the remaining provisions are grammatically and mechanically severable, and whether it is functionally severable, i.e., the remaining portion is complete in itself and capable of independent application.

1407.00000 – GENERAL LEGAL PRINCIPLES; STATUTORY CONSTRUCTION
1407.01000 – General Principles

Voters’ intent in adopting a charter amendment cannot be determined based on comments of amendment’s sponsor that were not communicated to the voters.