Decision 2772Ma – County of Sonoma

On remand from the Court of Appeal’s opinion and order partially overruling County of Sonoma (2021) PERB Decision No. 2772-M, the Board reconsidered: (1) whether certain Measure P provisions had “a significant and adverse effect on the wages, hours, or working conditions” of Association-represented employees, per the test set forth in Claremont Police Officers Assn. v. City of Claremont (2006) 39 Cal.4th 623; and (2) the appropriate remedy. (pp. 16-23; 29-31.)

“A case in controversy becomes moot when the essential nature of the complaint is lost because of some superseding act or acts of the parties.” [Citation.] “A charge that an employer’s unilateral change to a particular term or condition of employment was unlawful does not become moot merely because the parties reach agreement on that term or condition in subsequent negotiations. [Citation.] Only when the agreement clearly settles the issue of whether the respondent’s conduct was unlawful or explicitly waives the charging party’s right to pursue the charge will PERB find a case moot under these circumstances.” [Citation.] An actual dispute remains between the parties even if their subsequent agreement narrows the available relief. (p. 11.)

Board conclusions not challenged on judicial appeal are binding under the law of the case doctrine. (p. 13, fn. 6.)

In determining whether an employer’s decision is within the scope of representation under MMBA section 3504, the Board first determines into which of three categories of managerial decisions the decision falls: (1) decisions that have only an indirect and attenuated impact on the employment relationship and thus are not mandatory subjects of bargaining, such as advertising, product design, and financing; (2) decisions directly defining the employment relationship, such as wages, workplace rules, and the order of succession of layoffs and recalls, which are always mandatory subjects of bargaining; and (3) decisions that directly affect employment, such as eliminating jobs, but nonetheless may not be mandatory subjects of bargaining because they involve a change in the scope and direction of the enterprise or, in other words, the employer’s retained freedom to manage its affairs unrelated to employment. “When a decision falls into the third category, we first determine whether the decision has ‘a significant and adverse effect on the wages, hours, or working conditions of the bargaining-unit employees’ that ‘arises from the implementation of a fundamental managerial or policy decision.’ If both requirements are met, we determine whether ‘the employer’s need for unencumbered decisionmaking in managing its operations is outweighed by the benefit to employer-employee relations of bargaining about the action in question.’”

Here, the Court of Appeal affirmed the Board’s determination that the disputed Measure P amendments fell into the third category under this framework because the County has a substantial interest in increasing transparency and fostering community trust in policing and correctional services. Thus, the Board considered whether the decision to place the disputed Measure P amendments on the ballot had “a significant and adverse effect on the wages, hours, or working conditions of the bargaining-unit employees,” reviewing all relevant circumstances from the perspective of a reasonable employee. As to the first term, “significant” means “large or important enough to have an effect or to be noticed.” As to the second term, long-settled precedent holds that an employer action is adverse whenever a reasonable employee in the same circumstances “would consider the action to have an adverse impact on the employee’s employment.” Finally, under the reasonable employee standard, the effect of a change need only be reasonably foreseeable to be considered “significant and adverse.” Applying these standards, the Board found that the disputed Measure P provisions significantly and adversely affect Association-represented employees’ working conditions by creating a second, independent investigatory path. (pp. 14-18.)

New investigative procedures adversely affect employment when they create a potential for discipline that did not previously exist. Investigation and discipline lie at the core of traditional labor relations and are particularly amenable to collective bargaining—both for peace officers and other employee groups. But in cases involving law enforcement agencies, the countervailing management interest is unique given that peace officers “exercise tremendous power in the name of the public.” On the continuum of possible measures to enhance police accountability or improve police-community relations, management’s need for unencumbered decisionmaking tends to outweigh the benefit of bargaining in relation to measures focused squarely on public safety and community relations, such as revising use-of-force policies, implementing a racial profiling study, or requiring officers to wear body worn cameras. Thus, because peace officers sometimes use force—a unique aspect of their role in society—the scope of representation balancing test in law enforcement cases can turn on factors that do not matter for other employee groups. Most notably, a law enforcement agency generally has no decision bargaining obligation for an isolated change to an unwritten past practice related to peace officer investigations, where the practice was more protective than the Public Safety Officers’ Procedural Bill of Rights Act. Here, Measure P was a broad sea change consisting of many interrelated changes, creating an independent investigatory path even after County peace officers have been cleared in a Sheriff’s Office’s investigation. The several challenged Measure P amendments allowing repeat investigations of the same officers over an extended period—thereby significantly and adversely affecting their career trajectory—are prime examples of changes for which the benefit of collective bargaining outweighs the short delay caused by requiring negotiations. (pp. 19, 24-26.)

Several disputed Measure P provisions significantly and adversely affected Association-represented employees’ working conditions by creating a second, independent investigatory path. While a second independent investigation may or may not ultimately lead to an officer’s discipline, employees would reasonably view it as significantly and adversely affecting wages and promotional opportunities. Hearing testimony established that an officer who is under investigation will not be appointed to a specialty assignment or promoted. In such circumstances, the officer would not receive additional pay that comes with the specialty assignment or promotion, and the loss of the specialty assignment or promotional opportunity could adversely impact the officer’s career development. In addition, Measure P adversely affects Association-represented employees’ wages regardless of whether they are the subject of the investigation or only a witness, as the measure is silent about whether any employee subpoenaed by the second investigatory body to testify in an investigation will be paid if the interview takes place outside of the employee’s duty hours. The several challenged Measure P amendments allowing repeat investigations of the same officers over an extended period—thereby significantly and adversely affecting their career trajectory—are prime examples of changes for which the benefit of collective bargaining outweighs the short delay caused by requiring negotiations. (pp. 21, 26.)

Public agencies must comply with the MMBA’s meet-and-confer requirement before submitting to voters an initiative affecting matters within the scope of representation. An employer’s obligation to provide adequate notice and opportunity to meet and confer is identical for both “a decision involving a negotiable subject [and] a negotiable effect of a non-negotiable decision.” The County failed to provide the Associations sufficient notice or opportunity to meet and confer over the decision to place Measure P on the ballot where the Associations first learned of the decision immediately before the County Board of Supervisors voted to place the measure on the ballot. The County also provided insufficient notice or opportunity to meet and confer over effects of the decision because the Board of Supervisors’ vote constituted implementation of the decision. (pp. 28-29.)

The Board declined to order restoration of the status quo ante because the parties subsequently reached letters of agreement resolving all meet-and-confer issues arising out of the Measure P amendments the Board found could not be adopted or implemented without bargaining. It would not effectuate the MMBA’s purposes to disturb that agreement. (p. 30.)

Order to cease and desist from placing measures on the ballot that affect subjects within the scope of representation without notice and meeting and conferring upon request with the Associations over the decision or its effects and to post electronic and physical notices of the violation was the appropriate remedy for the County’s unlawful unilateral change, where the parties subsequently reached letters of agreement resolving all meet-and-confer issues arising out of the Measure P amendments the Board found could not be adopted or implemented without bargaining. (pp. 29, 31.)