V .STATIC OF CALL rORNIA ICDNIUNI) C. BROWN. IR.. Governor

PUBLIC EMPLOYMENT RELATIONS BOARD T' 4 EDt Division or Adntinistnn ive Law i P

1031 I Rth Street MAR - 3 2014Sacramento, CA 95811- 4124 d;Telephone: 916- 324 41143 SLO CITY ATTORNEY IVERB Fax:( 916) 327- 7955

February 28, 2014

Re: San Luis Obispo Police Officers Association r. City ofSan Luis ObispoCase No. LA- CE- 729- M

Dear Parties:

Attached is the Public' Employment Relations Board ( PERB or Board) agent' s ProposedDecision in the above- entitled matter.

Any party to the proceeding may file with the Board itself a statement of exceptions to theProposed Decision. The statement of exceptions shall be filed with the Board itself at thefollowing address:

PUBLIC EMPLOYMENT RELATIONS BOARDAttention: Appeals Assistant

1031 18th Street, Suite 200Sacramento, CA 95811- 4124

916) 322- 8231FAX: ( 916) 327- 7960

Pursuant to California Code of Regulations, title 8, section 32300, an original and five copiesof the statement of exceptions must be filed with the Board itself within 20 days of service ofthis decision. A document is considered ` filed" when actually received during a regular PERBbusiness day. (Cal. Code Regs., tit. 8, 32135, subd. ( a); see also, Cal. Code Regs., tit. 8,

32130.)

A document is also considered " filed" when received by facsimile transmission before the close of business together with a Facsimile Transmission Cover Sheet that meets therequirements of California Code of Regulations, title 8, section 32135( d), provided the filingparty also places the original, together with the required number of copies and proof of service,in the U. S. mail. ( Cal. Code Regs., tit. 8, 32135, subds. ( b), ( c) and ( d); see also, Cal. CodeRegs., tit. 8, 32090 and 32130.)

The statement of exceptions shall be in writing, signed by the party or its agent and shall: ( I)state the specific issues of procedure, fact, law or rationale to which each exception is taken;2) identify the page or part of the decision to which each exception is taken; ( 3) designate by

page citation or exhibit number the portions of the record, if any, relied upon for eachexception; and ( 4) state the grounds for each exception. Reference shall be made in thestatement of exceptions only to matters contained in the record of the case. An exception not

r. 17,

LA- CE- 729- MFebruary 28, 2014Page 2

specifically urged shall be waived. A supporting brief may be filed with the statement ofexceptions. ( Cal. Code Regs., tit. 8, 32300.)

Within 20 clays following the date of service of a, statement of exceptions, any party may filewith the Board itself an original and live copies of a response to the statement of exceptionsand a supporting brief. The response shall be filed with the Board itsolfat the address notedabove. The response may contain a statement of any exceptions the responding party wishes totake to the proposed decision. Any such statement of exceptions shall comply in form with therequirements of California Code of Regulations, title 8, section 32300. A response to suchexceptions may be filed within 20 days. Such response shall comply in form with theprovisions of this section.

All documents authorized to be filed herein must also be " served" upon all parties to theproceeding, and a " proof of service" must accompany each copy of a document served upon aparty or filed with the Board itself. (See Cal. Code Regs., tit. 8, 32140 for the requiredcontents.) The document will be considered properly " served': when personally delivered ordeposited in the mail or deposited with a delivery service and properly addressed. A documentmay also be concurrently served via facsimile transmission on all parties to the proceeding.Cal. Code Regs., tit. 8, 32135, subd. ( c).)

Any party desiring to argue orally before the Board itself regarding the exceptions to theproposed decision shall file with the statement of exceptions or the response thereto a writtenrequest stating the reasons for the request. Upon such request or its own motion the Boarditself may direct oral argument. ( Cal. Code Regs., tit. 8, 32315.) All requests for oralargument shall be filed as a separate document.

A request for an extension of time within which to file any document with the Board itselfshall be in writing and shall be filed at the headquarters office at least three days before theexpiration of the time required for filing. The request shall state the reason for the request and,if known, the position of each other party regarding the extension. Service and proof ofservice pursuant to California Code of Regulations, title 8, section 32140 are required.Extensions of time may be granted by the Board itself or an agent designated by the Boarditself for good cause only. (Cal. Code Regs., tit. 8, 32132, subd. ( a).)

Unless a party files a timely statement of exceptions to the proposed decision, the decisionshall become final. ( Cal. Code Regs., tit. 8, 32305.)

Very truly yours,

ear_Shawn P. CloughesyChief Administrative Law Judge

t-

PROOF OF SERVICE

declare that I am a resident of or employed in the County of Sacramento, California. Iam over the age of 18 years and not a party to the within entitled cause. The name and addressof my residence or business is Public Employment Relations Board, 1031 18th Street,Sacramento, CA 95811- 4124.

On February 28, 2014, I served the Cover Letter and Proposed Decision regarding CaseNo. LA- CE- 729- M on the parties listed below by

X placing a true copy thereof enclosed in a sealed envelope for collection anddelivery by the United States Postal Service or private delivery service following ordinarybusiness practices with postage or other costs prepaid.

personal delivery.facsimile transmission in accordance with the requirements of PERB Regulations

32090 and 32135( d).

Alison Berry Wilkinson, Attorney at LawBerry Wilkinson Law Group4040 Civic Center Drive, Suite 200San Rafael, CA 94903

Bruce Barsook, AttorneyLichen Cassidy Whitmore6033 West Century Boulevard, Suite 500Los Angeles, CA 90045

Christine Dietrick, City AttorneyCity of San Luis Obispo990 Palm StreetSan Luis Obispo, CA 93401

I declare under penalty of perjury that the foregoing is true and correct and that thisdeclaration was executed on February 28, 2014, at Sacramento, California.

C. Shelly 11:0Type or print name) Sign lure)

1,

1

SPATE OF CALIFORNIAPUBLIC EMPLOYMENT RELATIONS BOARD

SAN LUIS OBISPO POLICE OFFICERSASSOCIATION,

UNFAIR PRACTICECharging Party, CASE NO. LA- CE- 729-M

v. PROPOSED DECISION02/ 28/ 2014).

CITY OF SAN LUIS OBISPO,

Respondent.

Appearances: Berry Wilkinson Law Group by Alison Berry Wilkinson, Attorney, for San LuisObispo Police Officers Association; Liebert Cassidy Whitmore by Bruce A. Barsook,Attorney, and Office of the City Attorney by J. Christine Dietrick, City Attorney, for City ofSan Luis Obispo.

Before Valerie Pike Radio, Administrative Law Judge.

An exclusive representative alleges in this case that an employer failed in its duty to

meet and confer in good faith under the Meyers- Milias- Brown Act ( MMBA)' before proposingtwo ballot initiatives in a municipal election that affected employment conditions within the

scope of representation. The employer denies any violation of the law.

PROCEDURAL HISTORY

The San Luis Obispo Police Officers Association ( POA or Union) filed an unfair

practice charge with the Public Employment Relations Board ( PERB or Board) on October 17,

2011 against the City of San Luis Obispo ( City). The PERB Office of the General Counsel

issued a complaint on April 13, 2012. The complaint alleged that the City violated MMBA

sections 3503, 3505, 3506, 3507, and 3509( b) and PERB Regulation 32603( a), ( b), ( c), and ( 02

1 The MMBA is codified at Government Code section 3500 et seq.2 PERB regulations are codified at California Code of Regulations, title 8, section

31001 et seq.

by approving two proposed ballot initiatives without discharging its bargaining obligation.

The proposed initiatives (Measures A and B) affected two sections of the City Charter.

Measure A proposed to modify City Charter section 1 105 ( section 1 105) by eliminating arequirement that voters approve proposed reductions in employee retirement benefits. Measure

B proposed to repeal section 1 107 of the City Charter ( section 1107) that, among other things,

mandated binding arbitration of all employment disputes. The City filed its answer to the

complaint on May I, 2012, denying any violation of the law and alleging, among other

affirmative defenses, that PERB lacks jurisdiction over the charge pursuant to MMBA section

3511.

An informal settlement conference was conducted by PERB on June 5, 2012, but the

matter was not resolved. On October 19, 2012, the City filed a motion to dismiss the unfair

practice charge and complaint that was denied without prejudice by the administrative law

judge on December 7, 2012. On January 11, 2013, the parties filed an amended factual

stipulation and 28 joint exhibits that were admitted into evidence at the formal hearing held onJanuary 14, 2013. 3 With the submission of post- hearing briefs on March 25, 2013, the recordwas closed and the case was submitted for decision.

FINDINGS OF FACT

The Parties

The City is a public agency within the meaning of MMBA section 3501( c) and PERB

Regulation 3201 6( a), and a charter city pursuant to Article al, section 3( a), of the California

Constitution. The POA is a recognized employee organization within the meaning of MMBA

section 3501( 6) and an exclusive representative within the meaning of PERB Regulation

3 The amended stipulation corrected a previous factual stipulation that was filed onJanuary 9, 2013. Only the amended stipulation and acconipanying exhibits are included in theevidentiary record.

2

32016( b). The POA represents a " mixed" unit of employees that includes both civilian

personnel and sworn peace officers working in the City police department. 4

Background of the City Charter Provisions

1. Section 1105

The City contracts with the California Public Employees' Retirement System

CaIPERS) to administer retirement benefits for City employees. Prior to August 30, 2011,section 1 105 stated: 5

The City Council shall be authorized to enter into a contract withthe Board of Administration of the Public Employees' RetirementSystem of California that shall include all employees of the Cityof San Luis Obispo. Should the contract at any time bebroadened, the City Council may have the contract amended toprovide the improved coverage.

The Council may terminate the contract or negotiate anothercontract with reduced employee coverage with the Board of

Administration of the Public Employees' Retirement System onlyupon authority approved by the electorate.

2. Section 1 107

In the late 1980s, the POA became frustrated by protracted and difficult contract

negotiations with the City and joined with the union representing City firefighters to draft a

ballot initiative to amend the City Charter to require binding interest arbitration. When the

City became aware of this effort by the unions, it invited both employee groups to negotiate

over an employer-employee relations ordinance ( ERO) in lieu of qualifying their ballot

4 " Peace Officer" is defined by California Penal Code Section 830. 1.5 The record does not clearly explain how long section 1 105 had a been part of the City

Charter, or the process by which it was adopted.

6 City firefighters are represented by the San Luis Obispo Firefighters Association,IAFF Local 3523. " Interest arbitration involves an agreement between an employer and aunion to submit disagreements about the proposed content of a new labor contract to anarbitrator or arbitration panel." ( City ofFresno v. the People ex rel. Fresno Firefighters, IAFFLocal 753 et at ( 1999) 71 Ca1 App.4th 82, 96 ( Fresno Firefighters).)

3

measure for an upcoming election. The unions agreed. After those negotiations the City

adopted Resolution 6620 that, among other things, provided for non- binding factfinding in the

event ofa bargaining stalemate.

Approximately 10 years later, in the late 1990s, the POA again allied with the

firefighters' union after becoming dissatisfied with the non- binding dispute resolution

procedure under the ERO. The employee groups introduced a ballot initiative known as

Measure S that was passed by the electorate in November 2000. Measure S amended the City

Charter to include section 1107, which provided in relevant part:

A) Declaration of Policy. It is hereby declared to be the policyof the City of San Luis Obispo that strikes by firefighters andpolice officers are not in the public interest and should beprohibited, and that a method should be adopted forpeacefully and equitably resolving disputes that mightotherwise lead to such strikes.

B) Prohibition Against Strikes. No City of San Luis Obispofirefighter[ s] or police officers shall willfully engage in astrike against the City. Any such employee against whom theCity brings charges of failing to report to work as part of astrike shall be subject to dismissal from his or heremployment in the event the charges are sustained uponconclusion of the proceedings that are required by law for theimposition of disciplinary action upon said employee.

C) Obligation to Negotiate in Good Faith, The City... shallnegotiate in good faith with the San Luis Obispo PoliceOfficers Association and/ or the San Luis Obispo FirefightersAssociation, IAFF Local 3523, as the exclusive

representatives of representation units comprised solely ofemployees of the police department and/ or fire department, assuch units are currently constituted or as they may beamended through negotiation or arbitration as provided in this

section, on all matters relating to the wages, hours, and otherterms and conditions of City employment. Unless and untilagreement is reached through negotiations... or adetermination is made through the impartial arbitrationprocedure hereinafter provided, no existing benefit, term orcondition of employment for employees represented by theSan Luis Obispo Police Officers Association and/ or the San

4

Luis Obispo Firefighters Association, IAFF Local 3523, shallbe altered, eliminated or changed.

D) Impasse Resolution Procedures.

I) A11 disputes, controversies and grievances pertaining towages, hours or terms and conditions of employmentwhich remain unresolved after good faith negotiationsbetween the City and said employee organization shall besubmitted to a three member Board of Arbitrators uponthe declaration of an impasse by the City or by saidemployee organization. Upon declaration of impasse byeither party, the City and employee organization shalleach exchange a written last offer of settlement on each ofthe issues remaining in dispute. . . .

11 11]

7) The,proceedings described herein shall supercede thedispute resolution process for the San Luis Obispo PoliceOfficers Association and the San Luis Obispo FirefightersAssociation which is set forth in Sections 13. 2 and 14. 1 ofCity ofSan Luis Obispo Resolution No. 6620, to theextent that such language is in conflict with thisamendment. Furthermore, the proceedings describedherein shall supercede any language within the Employer-Employee Resolution, the Personnel Rules andRegulations, any Memorandum of Agreement with theemployee associations or any written policy or procedurerelating to wages, hours, or other terms and conditions of City employment, to the extent that such language is inconflict with this amendment. However, nothing in thissection shall preclude the parties from mutually agreeingto use dispute resolution processes other than the bindingarbitration process herein set forth. Nor, does it precludethe parties from negotiating, and submitting to thearbitration process set forth herein, a grievance process,which includes a form ofbinding arbitration that differsfrom the one, set forth herein.

Emphasis added.)

In 2006, the City and the POA reached an impasse in negotiations and utilized the

procedures in section 1107, which resulted in a binding arbitration award sometime in 2008.

5

In 2009, the City considered proposing, but ultimately did not then pursue, a ballot initiative to

rescind section 1107.

The City Decides to Propose Ballot Initiatives in 2011

Matthew Blackstone is the POA president and is employed as a police officer for the

City. Blackstone regularly reviews the City' s website for what are commonly referred to as

red file" communications. Red file communications are those between members of the public

and the City council that occur outside of City council meetings, but which are publicly

disclosed by the City to conform to legal requirements. In January 2011, 7 Blackstone observed

red file communications regarding the formation of a fiscal sustainability task force, which

prompted Blackstone to make a request for public records. After his review of the responsive

documents, Blackstone discovered some council communications regarding binding interest

arbitration. This was how Blackstone first was alerted that the council had renewed concerns

over that issue.

At a meeting of the City council on February 15, the council requested that City staff

notice a special meeting to discuss introducing two ballot measures to repeal sections 1 105 and

1107, and provide information at the special meeting regarding possible dates that an election

could be held for that purpose. Blackstone was not present at the February 15 meeting, but he

learned from employees who were there that the council had raised these issues. The special

meeting was then noticed for the following week on February 22. Blackstone was concerned

that because the election issues had not been placed on the agenda for the February 15 meeting,

there was no forewarning to the POA to attend that particular meeting. Further complicating

the matter from the POA' s perspective was the fact that the organization had previously

scheduled and paid for training for its board of directors to be held in Sacramento on

7 All dates hereafter refer to 2011 unless otherwise stated.

6

February 22. This effectively deprived POA officers of the ability to attend the noticed

meeting regarding the City' s plan to introduce the ballot measures. However, Blackstone also

admitted that the POA could have chosen to forfeit the money already spent for training in

order to attend the council meeting. POA officers chose not to do that and went to the training.

During the February 22 City council meeting, the council considered the feasibility of

holding an election on August 30. The council directed City staff to draft proposed language

for two ballot measures that would repeal sections 1105 and 1107, as well as language for an

ordinance that would allow it to proceed with an election on that date, if it chose to pursue that

action.

Sometime shortly after the February 22 meeting, the POA' s attorney, Alison Berry

Wilkinson, and City Attorney J. Christine Dietrick had a telephone conversation about the

direction given by the City council regarding drafting ballot language. Berry Wilkinson raised

concerns about the City' s obligation to meet and confer under People ex rel. Seal Beach Police

Officers Assn. v. City ofSeal Beach ( 1984) 36 Cal. 3d 591 ( Seal Beach) before approving ballotmeasures designed to repeal sections 1 105 and 1107. Dietrick informed Berry Wilkinson that

the City had concluded that it was not legally obligated to formally meet and confer in this

instance, but that it desired open communications with employees and their unions. In that

spirit, the City wanted to meet with the POA so that the organization could provide input

before the City council made a final decision over whether to proceed with an election. These

sentiments were also memorialized in a letter from Dietrick to Berry Wilkinson dated

March 1. 8 In that letter, Dietrick requested that Berry Wilkinson try to advise her by March 8

8 Dietrick also provided to Berry Wilkinsonso p o o Qer y Ik attached correspondence between her andthe attorney representing the firefighters' union in order to provide a fuller explanation of theCity' s legal conclusion over the issues presented. The letter from Dietrick to the firefighters'legal counsel informed him that based upon the Fresno Firefighters case and another recently

7

if the POA wanted to meet and discuss the issues. The POA, however, did not respond within

that period of time.9

On March 21, Berry Wilkinson wrote a letter to Dietrick, disagreeing with the City' s

contention that the Sea! Bench case did not compet the City to meet and confer with the POA

prior to introducing ballot initiatives that impact terms and conditions of employment. Berry

Wilkinson requested that as soon as draft ballot language was prepared, it be " promptly

provided" to the POA so that " it can initiate the meet and confer process." Berry Wilkinson

also expressed concern that the time frame. the City was considering for the election was not

adequate for the parties to complete bargaining.

There was email correspondence the following day between Berry Wilkinson and

Dietrick in response to the March 21 letter. Berry Wilkinson inquired over an expected time

frame to receive draft ballot language, and noted regarding binding interest arbitration that " if

a complete repeal is proposed, then the parties must discuss what alternate dispute resolution

procedure will be enacted." Berry Wilkinson further stated that:

P] rocedures for the resolution of disputes involving wages,hours, and other terms and conditions of employment are withinthe scope of representation as expressly set forth in Govt. Code

3507( 5) [ sic]. The duty to meet and consult under Govt. Code3507 over procedures for the resolution of disputes ( Govt. Code3507( 5) [ sic]) is the same as the duty to meet and confer as

defined in Govt. Code 3505. Vernon Firefighters v. City ofVernon ( 1980) 107 Cal. App.3d 802; International Association ofFire Fighters Loc. 1974 v. City ofPleasanton ( 1976) 56Cal.App.3d 959.

decided appellate case, the City concluded that bargaining over interest arbitration proposalswas permissive, rather than mandatory. ( Fresno Firefighters, supra, 71 Cal. App. 4th 82.)

9 There was some reference in testimony and documentary evidence to a March 7 emailfrom Berry Wilkinson to Dietrick, but it was not produced for the record, Berry Wilkinson didnot testify, and Dietrick did not remember receiving it.

8

Berry Wilkinson concluded that until the POA saw the exact language being proposed, it

would not be able to identify key issues that it may want to bargain over.

Dietrick responded to Berry Wilkinson via email stating that it was clear that the parties

had differing opinions over the legal obligation to meet and confer under the circumstances,

but reiterating that the City still desired to have informal discussions with the POA. Dietrick

noted that although the firefighters' union and the City had agreed to disagree over the City' s

legal duty to bargain, they were going ahead with informal discussions over the matter.

Regarding the draft ballot language, Dietrick stated that it would be fairly straightforward and

uncomplicated, along the lines of: "Shall Section I I07 of the City Charter ` Impartial and

Binding Arbitration for the San Luis Obispo. Police Officers and San Luis Obispo Firefighters

Association, IAFF Local 3523, Employee Disputes' be repealed?" Dietrick also noted that

similarly straightforward language would be introduced to repeal section 1105.

Between March 31 and April 17, a number of emails were exchanged between Berry

Wilkinson, Dietrick, Blackstone, Assistant City Attorney Andrea Visveshwara, and City

Human Resources Director Monica Irons. Both Berry Wilkinson and Dietrick were on

overlapping vacations during this time period, which limited their ability to reach each other by

telephone. Also during this time frame, Berry Wilkinson expressed that while the POA wanted

to give input over the proposed ballot measures, it was not willing to do so on the terms agreed

to by the firefighters union. Berry Wilkinson further stated that the POA believed the parties

should seek declaratory relief in the courts for guidance on the legal obligation to meet and

confer, prior to the expenditure of public funds on an election that may be invalid. Dietrick

urged the POA to at least meet and discuss the issues before resorting to any action in court: In

an email on April 14, Visveshwara informed Berry Wilkinson and Blackstone that the City

council would be considering input from employee groups over the proposed ballot measures

9

during a council meeting on April 19, and inquired whether the POA would be able to meet

with the City before then. According to Blackstone, this was the first time the POA was

notified that there was an anticipated date for the council to consider input from employee

groups over the proposed ballot measures.

Although it continued to maintain it had the right to formally meet and confer before

the City determined to propose ballot initiatives affecting terms and conditions of employment,

the POA finally agreed to meet informally with City representatives on April 19, prior to the

City council meeting. Because of 13lackstone' s patrol duties, he was only available to meet

between 1 : 30 p.m. and 5: 00 p. m. Blackstone testified and Dietrick also confirmed that,

historically, scheduling meeting times with the POA bargaining team has been challenging

because of police officers' work schedules.

Blackstone, POA Labor Relations Consultant DaleStrobridge, and several other

members of the POA negotiations team met with Dietrick and Visveshwara on April 19 at

approximately 1 : 30 p. m. 10 A special City council meeting to consider whether to adopt the

proposed ballot language was scheduled to take place that afternoon at 3: 00 p. m. Strobridge

found this significant because he could recall no other circumstance where a City council

meeting was scheduled during that hour, and he was also concerned over the truncated time

frame for the discussion.' 1 Dietrick and Visveshwara shared with the POA team a council

agenda report they had prepared, which included the proposed ballot language to be presented

to the council. The POA pointed out that the City' s proposed ballot language regarding section

1 105 contained an error in word choice that obscured its intended meaning. The City revised

to The City had already met informally with all of the other employee organizationswho desired to provide input over the proposed ballot measures well before April 19.

1 Before becoming a paid consultant for the POA, Strobridge worked for 30 years as apolice officer for the City, and for at least 28 of those years, he was also a POA officer andmember of the negotiations team.

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its proposed language based on this feedback. Shortly before 3: 00 p. m., Dietrick excused

herself from the meeting in order to travel to the City council meeting location, which was

approximately one mile from where the City and POA were holding their meeting. Strobridge

also left soon after to attend the City council meeting, which ended the meeting between POA

and the City. 12 No proposals were exchanged between the POA and the City over eitherproposed ballot measure, and no dates for future meetings between the parties were discussed.

Dietrick presented a report to the City council at the meeting on April 19 that

summarized the input received from employee organizations and acknowledged that POA

contended the City was obligated to meet and confer before calling for an election to repeal

sections 1 105 and 1107. The report also noted that June 3 was the deadline for the City to act

if it desired an all- mail ballot election to commence on August 30. 13 Strobridge was not able

to address the council during the meeting because he got there around 3: 30 p. m., and he did not

believe that there was an opportunity for public comment at that time. Motions were passed by

the City council directing staff to prepare ballot language to amend, rather than repeal, section

1 105 and to repeal section 1107.

On May 3, the POA filed a lawsuit in superior court seeking declaratory and injunctive

relief to compel the City to fulfill its bargaining obligations before placing its ballot initiatives

before voters. On May 9, the POA filed an ex pane application for a temporary restraining

order ( TRO) to prevent the City from setting a special election regarding the Charter

provisions. The court denied POA' s TRO application on May 16. On May 17, the City

12 Blackstone was unable to attend the City council meeting because he was still inuniform, having finished his patrol duties immediately before the meeting between POA andCity representatives. A City policy prohibits uniformed officers from attending City councilmeetings.

13 The City had also earlier communicated this information to the POA via email onMarch 31, stating that June 3 was the date by which the City council must act in order toschedule an election for August 30 under applicable election law.

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council adopted a resolution calling for and establishing a mailed ballot municipal election on

August 30 for voters to decide whether to amend section 1 105 to permit the City to terminate

or amend its contract with CaIPERS and/ or reduce employee retirement benefits, without voter

approval, and whether to repeal section 1 107 entirely. That election took place as scheduled.

Both City- sponsored initiatives passed, with 73. 95 percent of voters deciding to amend section

1 105 ( Measure A) and 72. 67 percent of voters deciding to repeal binding interest arbitration

Measure B). 14 The POA then dismissed its lawsuit against the City without prejudice onSeptember 21 and filed the instant charge with PERB on October 17. 15

ISSUES

I. Does PERB have jurisdiction over the claims presented in this matter since the

majority of POA unit employees are sworn peace officers under Penal Code section 830. 1?

2. Did the City violate MMBA section 3505 by failing to meet and confer with the

POA before adopting a resolution to submit ballot initiatives to voters to amend section 1 105

and to repeal section 1107?

3. Did the City violate MMBA section 3507 by failing to meet and consult with the

POA before adopting a resolution to submit a ballot initiative to voters to repeal section 1107?

CONCLUSIONS OF LAW

I. Jurisdiction

MMBA section 3511 provides:

The changes made to Sections 3501, 3507. 1, and 3509 of theGovernment Code by legislation enacted during the 1999- 2000

14 Strobridge testified, and the City admitted in its post- hearing brief, that after therepeal of section 1107, the City unilaterally reverted to the former non- binding disputeresolution procedure under the ERO, Resolution 6620.

15 In the court action, the City had argued that PER13 had exclusive jurisdiction overPOA' s claims since the bargaining unit includes non- sworn, civilian personnel.

12

Regular Session of the Legislature shall not apply to persons whoare peace officers as defined in Section 830. 1 of the Penal Code.

Emphasis added.) The changes to the MMBA referred to above are those that granted PERB,

rather than the courts, exclusive initial jurisdiction over allegations of unfair practices under

the MMBA. ( See MMBA, 3509( a).) " Peace officer" as defined under Penal Code section

830. 1 includes all of the police officers employed by a city. Courts have recognized that

MMBA section 3511 deprives PERB of jurisdiction over peace officers as stated in Penal Code

section 830. 1 . ( Coachella Valley Mosquito fi Vector Control Dist. v. Public Ltnpiownent

Relations Rd. (2005) 35 Cal.4th 1072, 1077, fn. 1 ( Coachella Valley); see also Paulsen v.

Local No. 856 ofInternational Brotherhood of Teamsters ( 2011) 193 Cal. App.4th 823, 828

PERB lacks jurisdiction over peace officers under Penal Code section 830. 1, however, deputyprobation officers as defined in Penal Code section 830. 5 are subject to PERI3' s jurisdiction].)

Recently, PERB held that while MMBA section 3508( a) grants peace officers the right

to be represented in a peace-officer only unit, nothing in the MMBA requires them to exercise

this right, or prohibits them from being in a mixed unit including non- peace officers, if they so

choose. ( County of Calaveras ( 2012) PERB Decision No. 2252- M ( Calaveras).) In

adjudicating an unfair practice proceeding involving an exclusive representative that

represented a mixed bargaining unit, PERB crafted a remedy that necessarily affected the

rights of peace officers who had been formerly included in the mixed unit. ( County of Yolo2013) PERB Decision No. 2316- M [ finding that while the employer had violated its local

rules in the processing of a representation petition to remove peace officers from a general

unit, the right of those officers under the MMBA to be in a unit with only other officers did not

warrant returning the officers to the general unit]; see also County of Yolo ( 2013) PERBDecision No. 2316a- M.) These cases demonstrate that PERB has exercised some remedial

powers thataffect the rights of employees excluded from its jurisdiction.

13

The City argues that PERB should dismiss the charge because it lacks jurisdiction over

peace officers in the unit and cannot fashion " piecemeal" remedies; therefore, it cannot award

a remedy affecting the rights of employees outside of its jurisdiction without obviating the

intent of MMBA section 3511. The POA counters that the City should be barred from

asserting that PERB lacks jurisdiction over the charge under the doctrine of judicial estoppel,

since the City argued in court that PERB has exclusive jurisdiction over the claims presented.

The POA also asserts that accepting the City' s argument would effectively deprive both non-

sworn unit employees and sworn peace officers from the ability to pursue their claims in any

forum. Both parties' arguments have some merit, but neither is ultimately wholly persuasive.

First, jurisdiction is defined by statute. It cannot be conferred by consent, waiver, orestoppel. ( Public 'Employment Relations Bd. iv. Modesto City School District ( 1982) 136

Cal. App. 3d 881, 890.) Thus, no matter how disingenuous the City' s arguments before the

court and PERB have been regarding jurisdiction, estoppel cannot award PERB jurisdiction

over employees whom the statute has expressly excluded from its authority. However, neither

can PERB abdicate its jurisdiction over non- sworn bargaining unit employees, as the City

would have it do, simply because they are housed in a bargaining unit that includes employees

who are excluded from PERB' s jurisdiction. As previously noted, the employees in this case

have a right under the MMBA to be in the mixed unit configuration they have chosen.

Calaveras, supra, PERB Decision No. 2252.) The City does not, and cannot, assert that the

non- sworn unit personnel here are not employees within the meaning of MMBA section

3501( d), and therefore fall squarely under PERB' s exclusive initial jurisdiction. PERB maynot abandon its statutory duties simply because the crafting of an appropriate remedy under the

circumstances may require some finesse. Accordingly, PERB may not dismiss a charge on

14

jurisdictional grounds when there are allegations affecting the rights of employees under itsjurisdiction.

The Board has not had the opportunity to explain the limits of its remedial authority

over employees who are excluded from its jurisdiction where an employer' s alleged bargainingviolation may equally impact employees both within and without PERB' s jurisdiction. That

precise issue was recently pending before the Board in several consolidated unfair practice

charges, but was withdrawn due to the parties' global settlement prior to the Board issuing a

substantive decision on the issue. ( City ofLompoc (2013) PERB Decision No. 2328- M.)

Thus, considering the plain meaning of the statute as well as the PERB and court decisions

discussed herein, I conclude that as to alleged violations that could on/ t' affect employment

conditions of City police officers, PERB lacks jurisdiction to review or remedy those

allegations. Alleged bargaining violations that could equally impact employment conditions of

both sworn and non- sworn unit employees are properly before PERB' s consideration, and

adjustment to remedy, if warranted, should be handled on a case- by-case basis.2. Alleged Violations of MMBA section 3505

The POA alleges that the City' s failure to fulfill its bargaining obligations prior to

sponsoring the ballot initiatives at issue led to unilateral changes in employment conditions. 1w

Fairfield-Suisun Unified School District ( 2012) PERB Decision No. 2262 ( Fairfield-Suisun), 16

the Board stated:

To prove up a unilateral change, the charging party must establishthat: ( I) the employer took action to change policy; ( 2) thechange in policy concerns a matter within the scope ofrepresentation; ( 3) the action was taken without giving theexclusive representative notice or opportunity to bargain over the

16 When interpreting the MMBA, it is appropriate to take guidance from casesinterpreting the National Labor Relations Act and California labor relations statutes withparallel provisions. ( Fire Fighters Union r. City of Vallejo ( 1974) 12 Cal. 3d 608.)

15

change; ( 4) the action had a generalized effect or continuingimpact on terms and conditions of employment. ( Walnut ValleyUnified School District ( 1981) PERB Decision No. 160; GrantJoint Union High School District ( 1982) PERB Decision No. 196Grant).)

1d., p. 9.)To avoid a charge of a unilateral change, an employer must meet and confer in good

faith with a recognized employee organization before sponsoring and introducing a ballot

initiative to the electorate that, if approved by voters, would change terms and conditions of

employment within the scope of representation. ( Seal Beach, supra, 36 Cal. 3d 591, 602.)

MMBA section 3504 defines the scope of representation as including " wages, hours,

and other terms and conditions of employment, except, however, that the scope of

representation shall not include consideration of the merits, necessity, or organization of any

service or activity provided by law or executive order." A three- part inquiry is employed to

test whether items that are not facially related to wages and hours fall within the scope of

representation under section 3504 of the MMBA. (City ofAlhambra (2010) PERB DecisionNo. 2139- M.) First, it is determined whether the management action had a significant and

adverse effect on the wages, hours, or working conditions of the employees in the bargaining

unit. If not, then there is no duty to meet and confer. Second, if a significant and adverse

effect is shown, it must be determined whether it flowed from the implementation of a

fundamental managerial or policy decision. If not, then the duty to meet and confer applies.

Third, if both factors are present i. e., the implementation of a fundamental managerial or

policy decision resulted in a significant and adverse effect on the wages, hours, or working

conditions of the employees in the bargaining unit then a balancing test is used. The action is

within the scope of representation only if the employer' s need for unencumbered decision-

making in managing its operations is outweighed by the benefit to employer-employee

16

relations of bargaining about the action in question. ( hi., p. 13, citing Claremont Police

Officers Assn. r. City of Claremont ( 2006) 39 Cal. 4th 623, 638 ( Claremont).)

Only the second and third elements of the above- quoted test in Fairfield-Suisun, supra,

PERB Decision No. 2262 are in significant dispute under the facts presented in this case. The

City does not appear to contest, and it is also clear from the record, that the amendment of

section 1 105 and the repeal of section 1 107 resulted in alterations to long-standing policies in

the City, and that these changes, at least in the case of the repeal of section 1107, had a

sustained and generalized effect upon employment conditions." If the City had not taken

action to introduce Measures A and B to the voters, these changes would not have occurred.

Regarding the disputed elements, the City argues that it had no duty to meet and confer

over either proposed ballot initiative because they did not impact employment conditions

within the scope of representation. The City further contends that, even assuming there was a

duty to bargain, the POA waived its right to do so by repeatedly delaying the informal

discussions that the City had been inviting. Before reaching the latter argument, it must first

be determined whether either of the proposed ballot initiatives, in whole or in part, impacted

employment conditions within the scope of representation of employees within PERB' s

jurisdiction.

A. Section 1 105 Measure A

It is well settled that the future retirement benefits of current employees are a

mandatory subject of bargaining. ( County ofSacramento ( 2009) PERB Decision No. 2045- M;Madera Unified School District (2007) PERB Decision No. 1907 ( Madera). The Board in

Madera explained:

17 As will be discussed further below, it is not clear that the amendment to section 1 105had an effect on conditions of employment.

17

Employees can take their compensation as current wages, presenthealth benefits, or future healtli/pension benefits. " Health and welfarebenefits" are a specifically enumerated term and condition ofemployment under EERA section 3543. 2. 1181 Thus, . . . futureretirement health benefits for current employees are within the scope

of bargaining.

Id., p. 2.) In reaching this conclusion. PERB has relied on " long established principles originallydeveloped under the National Labor Relations Act (NLRA) j191." ( County ofSacramento, supra,

proposed decision, pp. 7- 8, citations omitted.) In County ofSacramento, the Board followed the

reasoning of the U. S. Supreme Court on this subject, stating:To be sure, the future retirement benefits of active workers are partand parcel of their overall compensation and hence a well-establishedstatuory subject of bargaining.

Id., proposed decision, p. 8, quoting Allied Chem. & Alkali Workers, Local Union No. I v.

Pittsburgh Plate Glass Co. ( 1971) 404 U. S. 157, 181 ( Pittsburgh Plate Glass); emphasis added.)

The court in Pittsburgh Plate Glass acknowledged that, in some circumstances, current employees

may choose to modify their future retirement benefits, stating that " they are free to decide, for

example, that current income is preferable to greater certainty in their own retirement benefits or,

indeed, to their retirement benefits altogether." ( Id.)

Had the City' s proposed initiative actually changed the levels of future retirement benefits

for current employees, the issue clearly would be within the scope of representation under the

above authorities and the analysis on this point would end. However, the amendment to section

1 105 proposed by the City did not in any way change, or propose to change in the future,

employees' retirement benefit levels. Rather, what Measure A proposed to do was to remove the

electorate' s veto polder over any plan by the City to terminate or modify its contract with

CaIPERS, or to decrease retirement benefit levels. Thus, the above cases do not provide direct

18 The Educational Employment Relations Act ( EERA) is codified at Government Codesection 3540 et seq.

19 The NLRA is codified at 29 U. S. C., 151 et seq.

18

guidance in determining whether Measure A required Seal Beach pre-election negotiations. (SealBeach, supra, 36 Cal. 3d 591.)

Strobridge described section 1 105 as a " safety net," from the POA' s perspective.

Strobridge explained:

I] f we entered into negotiations with the City and the City, throughthe meet and confer process, nict and conferred to the point ofimpasse and then unilaterally imposed degradation of benefits, wealways had the right to go back to the community, to the voters, andto make our case to the voters on why that should not be fullyimplemented. So, 1 105 was the final component, if you will of theimpasse resolution process. j201

In some instances, the previous section 1 105 could have operated as POA intended.

However, there is a problem with characterizing the provision as an impasse resolution process.

That is, POA' s argument presumes that the voter-approval requirement only applied to instances of

bargaining impasses between the POA and the City, which is not true. Section 1105, in its

previous form, required voter approval regardless of whether an agreement existed between the

POA and the City to reduce retirement benefit levels. The POA' s argument implies that the Union

would never agree to reduce retirement benefit levels, but as the cases cited above recognize, there

are circumstances when employees, through their bargaining' representative, may choose to

decrease their future retirement benefits. In such an example, where an agreement to reduce

retirement benefits had been lawfully reached, the voters under the previous section 1105 would

have had the power to block the terms of the agreement. From that standpoint, the previous

enactment of section 1 105 could have as easily impeded the bargaining relationship between the

20 As discussed in greater depth below, dispute resolution procedures over wages,hours, and other terms and conditions of employment are subject to the duty for consultation ingood faith under MMBA section 3507( a)( 5). The PERB complaint did not allege that theCity' s proposed modification of section 1105 violated MMBA section 3507.

19

POA and the City as resolved potential bargaining impasses.'- Thus, the POA' s depiction of

section 1105 as an impasse resolution process is rejected.

The City contends that, similar to the situation in Fresno Firefighters, supra, 71

Cal. App. 4th at p. 101, there was no duty to bargain over the proposed modification of section

1105, because the proposed modification did not affect or alter the " status quo" of unit

employment conditions. There is merit to this contention.

At issue in Fresno Firefighters was the employer' s proposed ballot initiative to repeal a

section of the city charter that established an eight- city formula to set a minimum threshold for

the employer' s initial bargaining position on unit salaries. Although the salary formula was

successfully repealed, there was no actual change to employees' salary levels and the employer

continued to abide by the terms of the memorandum of understanding ( MOU) in place between

the parties. The court noted that the unions had no right under the MMBA to have the

employer' s initial bargaining position enshrined in the city charter and further noted:

R] epeal of the eight- city formula as a minimum threshold forwages did not set wages at any particular level; more importantly,repeal still permitted the parties to agree through the meet- and-

confer process that the exact same eight- city for iiuta would setthe wages under the MOU' s. [ Citation omitted.] As a result, weconclude placing on the ballot a proposal to repeal charter section809 did not in any manner change the " status quo" between theCity and its firefighter and police employees, as that term is usedunder the MMBA.

21 Moreover, pension rights of public employees vest upon acceptance of employment.Miller v. State of California ( 1977) 18 Cal. 3d 808, 814.) Thus, in order for vested pension

benefits to be lawfully decreased, the modification must be reasonable, bear a material relationto the pension plan' s success, and be accompanied by comparable new advantages. ( Valdes v.Coo,( 1983) 139 Cal.App.3d 773, 784.) The POA' s concerns regarding unilaterally imposeddecreases in retirement benefit levels are not reasonably ameliorated by the electorates'approval or disapproval of such decreases. Whether or not the " safety net" of final voterapproval was in effect, any unilaterally imposed decrease in benefit levels that did not conformwith the standard stated above would be subject to court challenge, irrespective of the voters'opportunity to weigh in.

20

Fresno Firefighters, supra, 71 Cal. App.4th at pp. 100- 101; italics in original, underscore

added.)

The court also held that the employer had no duty to engage in bargaining through

impasse before placing its repeal initiative before voters, because bargaining in that instance

was permissive rather than mandatory. (Fresno Firefighters, supra, 71 Cal. App.4th at p. 101.)However, the court acknowledged that a different conclusion would have been reached had the

proposed ballot initiative actually changed the way that wages were set. (/ bid.) Similarly, inthis case, Meastire A did not itself modify retirement benefit levels or alter the status quo, and

the parties retained the right and obligation to bargain over any changes in retirement benefit

levels in the future.22 Had Measure A actually changed retirement benefit levels, then a

different conclusion would be reached. However, under the court' s rationale in Fresno

Firefighters, there was no duty to bargain over it before placing it on the ballot.

Finally, Measure A does not fit within the scope of representation under the threshold

prong of the Claremont test, because it has not been demonstrated that it had a significant and

adverse effect on unit wages, hours, or working conditions. ( Claremont, supra, 39 Cal. 4th at

p. 638; City ofAlhambra, supra, PERB Decision No. 2139- M.). As discussed here at length,

Measure A did not alter, or attempt to alter in the future, retirement benefit levels. For this

reason alone it could be concluded that it fails to pass muster under the Claremont test. The

inability of the POA to make its case to the voters that retirement benefits should not be

Z`' As the court aptly noted, the duty to bargain in good faith over wages required theemployer to continue to pay the same wages that had been bargained over, " unless and untilthe parties agreed otherwise or had exhausted the impasse procedures. That is true, however,regardless of whether section 809 was still in the... Charter or had been repealed. The duty tobargain in good faith established in the MMI3A is a natter of statewide concern and ofoverriding legislative policy, and nothing that is or is not in a city' s charter can supersede thatduty." ( Fresno Firefighters, supra, Cal. App.4th at p. 100, citing Seal Beach, supra, 36 Ca1. 3dat p. 600.)

21

unilaterally reduced by the City, provides an example of, at best, speculative and negligible

harm. If harm is merely speculative, it cannot reasonably be considered significant and

adverse. Furthermore, as previously discussed, the existence or demise of section 1 105 has no

bearing on the POA' s ability to challenge a unilateral imposition of reduced retirement benefits

that may abridge vested rights under California law. Since it is concluded that Measure A did

not impact matters within the scope of representation, and it cannot reasonably be construed as

a dispute resolution procedure, the City had no duty to bargain with POA over its terms before

introducing it to voters.

B. Section 1 107 Measure 13

Regarding the repeal of section 1107, the PERB complaint alleges that MMBA section

3505 was violated as follows:

9. Before August 30, 2011, section 1 107 of the City Charterprovided, in part, that no bargaining unit ofemployee of[ thePO4] shall i'illfitll, engage in a strike against [ the City].

10. On or about May 17, 2011, [ the City], through its CityCouncil, adopted a resolution to submit to the voters a ballotmeasure which would completely repeal section 1 107 of the CityCharter.

11. [ The City] engaged in the conduct in paragraph 10 withoutprior notice to [ the POA] and without having afforded [ the POA]an opportunity to meet and confer over the decision to implementthe change in policy and/ or the effects of the change in policy.

12. By the acts and conduct described in paragraphs 10 and I I,the City] failed and refused to meet and confer in good faith in

violation of Government Code section 3505 and committed anunfair practice under Government Code section 3509( b) andPERB Regulation 32603( c).)231

Emphasis added.)

23 It was further alleged in paragraphs 13 and 14 of the complaint that the City' sconduct in paragraph 10 also interfered with unit employees' right to be represented by thePOA and denied the POA the right to represent its members.

22

As highlighted by the City in its brief, subdivision ( B) of section 1107, which is the

strike prohibition and discipline clause that is referenced in paragraph 9 of the PERB

complaint, applies only to unit police `officers." The POA does not dispute that subdivision

B) applies exclusively to the police officers in the bargaining unit and, therefore, does notapply to the non- sworn personnel in the unit. In its brief, the POA argues that a strike-

prohibition and discipline clause is precisely what was at issue in Seal Beach, supra, 36

Cal. 3d 591 and, therefore, the City was obligated to bargain with the POA over the proposed

repeal of that section of the Charter prior to introducing a ballot measure for that purpose.

This argument may have traction if this subdivision applied to employees under PERI3' s

jurisdiction. However, it does not. Thus, even if within the scope of representation and

therefore ordinarily subject to Seal Beach pre-election negotiations,. PERB here is without

power to enforce the bargaining obligation over this particular clause. Accordingly, PERB

lacks authority to find a violation based on the repeal of this portion of the Charter.

It would be fair to conclude that the City' s action regarding the repeal of section 1 107

that is alleged to have violated MMI3A section 3505 is limited to the repeal of subdivision ( B).

This is so, because paragraph 9 of the complaint specifically describes only the strike

prohibition clause as the policy in place prior to August 30. However, both parties' briefs

address whether each subdivision in section 1 107 was subject to bargaining. It is therefore

necessary to consider the remaining subdivisions separately to determine whether they

addresses matters, in whole or in part, that impact employment conditions within the scope of

representation for employees within PERB' s jurisdiction,

Subdivision ( A) of section 1 107 is simply a statement of policy against strikes by policeofficers and firefighters, and for the establishment of a peaceful method of resolving disputes.

23

Accordingly, this subdivision does not itself impact employment conditions and no bargaining

obligation attached to its proposed repeal.

The POA characterizes subdivision ( C) of section 1 107 as a security and recognition

clause because the subdivision states that the City is obligated to bargain in good faith with the

POA as an exclusive representative. The POA also asserts that the City was obligated by

MMBA section 3507( a)( 3) and ( 4) to bargain with the POA before establishing a " different

procedure for exclusive representative status." 24 These arguments are not convincing.

Subdivision ( C) is merely a general restatement of bargaining rights and obligations under theMMBA. As such, it does not itself impact employment conditions within the scope of

representation and, therefore, no bargaining obligation attached to its proposed repeal.

Although subdivision ( C) identifies the POA as the exclusive representative of the bargainingunit, there is no evidence that the subdivision itself set forth a procedure for the City to grant

such recognition or that its repeal established a different procedure for exclusive recognition.

Nor is there evidence that the repeal of subdivision ( C) had any effect on POA' s status as an

exclusive representative. Accordingly, the POA' s assertion that bargaining obligations

pursuant to MMBA section 3507 were violated under the repeal of this subdivision is rejected.

Subdivision ( D) of City Charter section 1 107 set forth impasse resolution procedures,including binding interest arbitration procedures, applicable to the entire POA bargaining unit.

Regarding an alleged violation of MMBA section 3505, PERB has determined that binding

interest arbitration is a permissive subject of bargaining and, therefore, falls outside the scopeof representation. ( County ofSanta Clara ( 2010) PERB Decision No. 2120- M, p. 10; CountyofSanta Clara ( 2010) PERB Decision No. 21 14- M, p. 10 ( collectively, " the Santa Clara

24 The PERB complaint, however, did not allege a violation of MMBA section 3507specifically regarding the repeal of subdivision ( C) of section 1107.

24

cases").) The Board' s determination was based on the Sixth District Court of Appeal decision

in DiQuisto v. County ofSanta Clara ( 2010) 181 Cal. App.4th 236 ( DiQuisto), which held that

the particular binding interest arbitration provision at issue in both of the Santa Clara cases

was a non- mandatory bargaining subject. ( DiQuisto at pp. 255- 256.) In general, neither partyto the bargaining relationship has a duty to bargain with respect to subjects outside of the scope

of representation. ( NLRB. v. Wooster Division ofBo g- Warner Corp. ( 1958) 356 U. S. 342,349.) Thus, in the Santa Clara cases, the Board held that the employer had no duty to bargain

with employee organizations prior to proposing ballot initiatives that modified binding interest

arbitration provisions. Accordingly, regarding any alleged violation of MMBA section 3505

connected to the proposed repeal of subdivision ( D), the Santa Clara cases are controlling overthe issue and the City cannot be found to have violated its bargaining obligation under that

section of the statute.

Based on the foregoing discussion, the alleged violations of MMBA section 3503,

3505, 3506, 3509(b), and PERB Regulation 32603( a), ( b), and ( c), by the City' s proposedballot initiatives to amend section 1 105 and to repeal section 1107 in paragraphs 3 through 14

of the PERB complaint are dismissed.

3. . Alleged Violation of MMBA Section 3507

MMBA section 3507, " Rules and Regulations," provides in part:

a) A public agency may adopt reasonable rules and regulationsafter consultation in goodfaith with representatives of arecognized employee organization or organizations for theadministration of employer-employee relations under this

chapter. The rules and regulations may include provisions for allof the following:

11 . . . 11]

5) Additional procedures for the resolution of disputes involvingwages, hours and other terms and conditions of employment.

25

Emphasis added.)

In interpreting MMBA section 3507( a), courts have consistently held that theobligations imposed by the requirement for " consultation in good faith" are identical to those

required to discharge the duty to meet and confer in good faith under MMBA section 3505.

Independent Union ofpublic Service Employees v. County ofSacramento ( 1983) 147

Cal. App.3d 482, 488; Vernon Fire Fighters v. City of Vernon ( 1980) 107 Cal. App.3d 802, 821;International Assn. ofFire Fighters Union v. City ofPleasanton ( 1976) 56 Cal. App.3d 959,976.) " Meet and confer in good faith" means that the parties have the mutual obligation:

P] ersonally to meet and confer promptly upon request by eitherparty and continuefor a reasonable period oftime in order toexchange freely information, opinions, and proposals, and toendeavor to reach agreement on matters Within the scope,ofrepresentation[.]

MMBA, 3505; emphasis added.)

Though the above process is not binding in that after it is exhausted the employer may

unilaterally implement terms and conditions of employment, it nonetheless requires that the

parties " attempt to resolve differences and reach a common ground." ( Los Angeles County

Civil Service Commission v. Superior Court ( 1978) 23 Cal. 3d 55, 61- 62 ( Los Angeles County),

quoting Placentia Fire Fighters v. City ofPlacentia ( 1976) 57 Cal. App.3d 9, 25.) Since the

duty to meet and confer is the same as the required consultation in good faith under MMBA

section 3507, then any employer-proposed ballot initiative that would change a matter within

the scope of representation under MMBA section 3507 should require pre- election

negotiations. (Seal Beach, supra, 36 Cal. 3d at p. 602.)MMBA section 3507( a) requires consultation in good faith over nine enumerated areas.

MMBA, .3507( a)( l)-( 9).) These nine areas are specifically defined and, therefore, stand

apart and are distinct from the general definition of the scope of representation in MMBA

26

section 3504. 25 In broad strokes, these areas cover the recognition process for employee

organizations, and certain access and information rights enjoyed by employee organizations.Therefore, in order to satisfy the duty to consult in good faith, parties must " endeavor to reach

agreement" over those areas. ( See MMBA, 3505.) Relevant here is a mandate to consult in

good faith over procedures for the resolution of disputes between employee organizations and

employers overemployment conditions. ( MMBA, 3507( x)( 5).)

There is no question that former section 1107, subdivision ( D), was the procedure in

place that was designed to resolve all disputes over wages, hours, and other terms and

conditions of employment between the POA and the City, and that the City proposed Measure

B to repeal it. Accordingly, the proposal of Measure B impacted the duty to consult in good

faith as defined in MMBA section 3507( a)( 5). 26 It is also clear that former section 1 107

applied equally to all members of the POA bargaining unit and, therefore, to employees within

PERI3' sjurisdiction. The City, however, argues that no Seal Beach pre-election negotiations

over Measure B were required based on the holdings of Santa Clara, supra, PERB Decision

Nos. 2120- M and 2I 14- M and DiQuisto, supra, 181 Cal. App.4th 236. ( Seal Beach, supra, 36Cal. 3d 591.) For the reasons discussed below, I reject this argument.

In the Santa Clara cases, the Board found no violation of the duty to bargain in good

faith under MMBA section 3505 by the employer' s approval of a ballot measure that modified

25 It is well- established that when considering a statute, the primary task is to ascertainthe intent of the Legislature, thereby giving effect to the law' s purpose. ( Coachella Valley,supra, 35 Ca1. 4th at p. 1083.) Given that MMBA section 3507 very clearly defines separateareas of negotiability, in addition to those described elsewhere in the statute, it must bepresumed that the Legislature intended a distinct bargaining obligation for MMBA section3507. Accordingly, there is no need to employ the Claremont test, which analyzes MMBAsection 3504, to determine the negotiability of subjects in section 3507. ( Claremont, supra, 39Ca1. 4th 623.)

26 It is undisputed that after Measure B repealed section 1107, the City unilaterallyreverted to the former non- binding dispute resolution procedure under the ERO ( Resolution6620).

27

a binding interest arbitration provision without completing Seal Beach pre- election

negotiations. (Santa Clara, supra, PERB Decision No. 2120- M, p. 10; Santa Clara, supra,PERB Decision No. 2114- M, p. 10; Seal Beach, supra, 36 Ca1. 3d 591.) The Board' s

conclusion on this issue was wholly based upon the determination of the court in DiQuisto,

that binding interest arbitration provisions ( including the very provision at issue in those cases)

are permissive subjects of bargaining and, therefore, are excluded from the scope of

representation as defined in MMBA section 3504. ( DiQuisto, supra, 181 Cal. App.4th at p.2&6r) However, neither the unions nor the PERB complaints in the Santa Clara cases alleged,

and therefore the Board had no reason to consider, whether the employer' s conduct constituted

a separate violation of the duty to consult in good faith under MMBA section 3507. Since that

issue was never before the Board, its holding in the Santa Clara cases cannot. dispose of the

specific allegation in the PERB complaint here that the City failed to consult in good faith over

the proposed repeal of Charter section 1 107 in violation of MMBA section 3507.

Clearly, the City was confident that recent developments in PERB and court case law

absolved the bargaining obligation over the binding interest' arbitration component of its

proposed ballot measure. The City communicated to the POA in a telephone conversation

between Dietrick and Berry Wilkinson on February 22, and a letter memorializing that

conversation on March I, that the City had concluded it " was not legally obligated to meet and

confer" before proposing its ballot initiatives in this instance. The City also attached

correspondence addressed to the firefighters' union to the March I letter, explaining its

analysis of the DiQuisto and Fresno Firefighters cases to the issue. ( DiQuisto, supra, 181

Cal. App.4th 236; Fresno Firefighters, supra, 71 Cal. App.4th 82.) However, as in the Santa

Clara cases, the court in DiQuisto did not discuss or consider an alleged violation of the duty

28

to consult in good faith under MMBA section 3507. In fact, the DiQuisto case did not directlyinvolve an alleged violation of the MMBA at all.

Chiefly at issue in the DiQuisto case was an allegation that the County of Santa Clarahad improperly expended public funds to promote a partisan position in an election campaign

when it bargained with unions to attempt to get them not to support a union- sponsored ballot

initiative to enact binding interest arbitration. ( DiQuisto, supra, 181 Cal. App.4th at pp. 242-243.) The court concluded that no such improper expenditure had occurred. ( Id. at p. 268.)Regarding bargaining proposals over binding interest arbitration, the court stated:

Under state law, although interest arbitration is not a mandatorysubject of contract negotiations, it is a permissive subject aboutwhich the parties properly may meet and confer. ( FresnoFirefighters], supra, 7/ Cal.App. 4th at pp. 96- 97.) Likewise,

under federal law, binding interest arbitration " is not a mandatorysubject of bargaining, since its effect on terms and conditions ofemployment during the contract period is at best remote."N.L. R. B. v. Columbus Printing Pressmen and Assistants' Union

No. 252 ( 5th Cir. 1976) 543 F.2d 1161, 1166.)

Id. at p. 257; underscore emphasis added; italics in original.) The unions argued that it was

unlawful for the City to propose during negotiations that they fail to support the proposed

binding interest arbitration ballot measure. The court rejected this argument, finding that itwas lawful for the employer to discuss permissive subjects of bargaining at the table ( Id. at p.258), and that it did not offer the unions higher wages as a quid pro quo for their silence or

engage in campaign activity at the bargaining table, which may have demonstrated violations

of campaign laws. ( Id. at p. 263, 268.)

However, the court' s analysis of binding interest arbitration as a permissive bargaining

subject was limited to the duty to bargain under MMBA section 3505 over items within the

scope of representation under MMBA section 3504. ( DiQuisto. supra, 181 Cal. App.4th at p.256.) The court never analyzed or considered the issue from the perspective of the distinct

29

duty to meet and consult in good faith under MMBA section 3507( a)( 5) over " procedures forthe resolution of disputes involving wages, hours and other.terms and conditions of

employment." The same is also true of the court in Fresno Firefighters. In that case, the

conclusion that binding interest arbitration is a permissive subject of bargaining was also

entirely based on MMi3A sections 3505 and 3504, and upon comparison of federal decisions

interpreting the NLRA concluding that interest arbitration is a permissive bargaining subject.

Fresno Firefighters, supra, 71 Cal. App.4th at 91- 92, 96- 97.)

Resort to federal decisions under the NLRA provide no guidance in determining the

scope of negotiability under MMBA section 3507, however, because the NLRA contains no

comparable provision. 27 For instance, the DiQuisto court' s reliance on the Fifth Circuit court' s

observation regarding interest arbitration' s remote effects on employment conditions may help .

determine negotiability under MMBA section 3504, which parallels NLRA provisions, but

provides no guidance in analyzing MMi3A section 3507, which does not. ( DiQuisto, supra,

181 Cal. App.4th 236.) As the court noted in Fresno Firefighters:

In combination, sections 3504 and 3505 essentially map out thesame territory for bargaining ( conditions of employment) andexemption from bargaining (management prerogatives) that hasbeen mapped out in federal case law under the National LaborRelations Act[.] [ Citations omitted].

Fresno Firefighters, supra, 71 Cal. App.4th at p. 91; italics in original.) In contrast here, using

the court' s phraseology, MMI3A section 3507 ventures into territory that has not been " mapped

out" by the NLRA. Since neither PER13, nor the courts, have considered whether there is a

distinct, mandatory duty to negotiate over binding interest arbitration procedures under MMI3A

section 3507, neither the Santa Clara cases, nor the DiQuisto or Fresno Firefighters cases are

27 While cases decided under the NLRA are generally instructive, they are notcontrolling where PER13 is interpreting dissimilar provisions of California' s labor relationsstatutes. ( See, e. g., Los Angeles Unified School District ( 1998) PERB Decision No. 1267.)

30

clispositive of the issue. ( County ofSanta Clara, supra, PERB Decision No. 2120- M; Connrn

ofSanta Clara, supra, PERB Decision No. 2114- M; DiQuisto, supra, 181 Cal. App.4th 236.)As stated above, there is no question that former section 1107, subdivision ( D) was the

only procedure in place for the resolution of disputes involving wages, hours and other terms

and conditions of employment between the City and the POA, and that the City successfully

repealed it by sponsoring a municipal election for that purpose and then unilaterally enacted

the former dispute resolution procedure that been in place years earlier under the ERO. The

former section 1 107 also went beyond the traditional model of binding interest arbitration as

defined by the court in Fresno Firefighters, in that it applied to all disputes and grievances

between the POA and the City over employment conditions, and not just to those involvingsuccessor contract negotiations. ( See Fresno Firefighters, supra, 71 Cal. App.4th at p. 96.)The affirmative duty to consult in good faith over the dispute resolution procedures expressed

in MMBA section 3507( a), including the expanded binding interest arbitration here, cannot besquared with the courts' and PERI3' s previous conclusions over the permissive nature of such

negotiations. Thus, the City had an affirmative duty to consult in good faith with the POA

before it introduced Measure B to the voters. ( See Seal Beach, supra, 36 Cal. 3d at p. 602.)As noted previously, the first, second, and fourth elements of the test for unilateral

change in Fairfield-Suisun, supra, PERB Decision No. 2262 are met for this allegation,

because the City took action to change a policy that impacted the duty for consultation in good

faith under MMBA section 3507, which in turn resulted in sustained changes to dispute

resolution procedures. 28 The City argues, however, that even if the duty to bargain applied, the

28 Since the courts have held that same requirements apply to satisfy the duty forconsultation in good faith and the duty to meet and confer in good faith, then the testapplicable to an alleged unilateral change under MMBA section 3505 should apply to thisallegation.

31

POA waived its opportunity by repeatedly delaying to meet informally as the City urged,29 and

by failing to make an adequate demand to consult under MMI3A section 3507. Neither

argument has weight.

First, to satisfy the duty to meet and consult in good faith, the City must have met with

the POA for a reasonable amount of time, with a genuine intent to resolve differences and

reach agreement by finding a common ground. ( Los Angeles County, supra, 23 Cal. 3d at

pp. 61- 62.) A genuine intent to reach an agreement cannot be demonstrated by inviting

informal" discussions and meeting once under that guise, while simultaneously declaring that

there is no legal duty to bargain. This mixed message is no different than an outright refusal to

bargain, which is per se unlawful without any determination of subjective bad faith. ( Pajaro

Valley Unifier! School District ( 1978) PERB Decision No. 51.) While expressing a desire to

receive input from employee groups on an informal basis may provide evidence of the City' s

subjective good faith efforts at fostering good employer- employee relations, it does nothing todemonstrate, from an objective standpoint, that there was a genuine desire to reach agreement

here through consultation in good faith. What the City did demonstrate was that it believed. it

was entitled to unilaterally act, whether or not the POA expressed its opinion over the

proposed repeal of section 1107. This is tantamount to announcing a fait accompli. ( See CityofSacramento ( 2013) PERB Decision No. 2351- M, p. 33 and the cases cited therein [ the

employer' s notice of a proposed change must be accompanied by conduct indicating that it is

entering negotiations with an open mind, otherwise it is " nothing more than the announcement

of a fait accompli"].)

29 An employer asserting a defense of waiver by inaction has the burden of proof toshow by a preponderance of evidence that it gave the union notice and opportunity to bargainover the proposed change and the union failed to act. Where a request to bargain would havebeen futile, however, the defense of waiver fails. (Fairfield-Suisun, supra, PERB Decision No.2262.)

32

Furthermore, an employer' s subjective good faith desire to reach agreement on some

subjects does not shield it from liability when it refuses to negotiate over a subject that it

contends is outside the scope of representation. ( City of Torrance ( 2008) PERB Decision

No. 1971- M, pp. 25- 26, citing Sierra Joint Community College District ( 1981) PERB DecisionNo. 179 ( Sierra).) In the Sierra case, the employer maintained that a release time proposal by

the union was outside the scope of representation and refused to negotiate over it. The

proposed decision of the administrative law judge concluded that the release time proposal was

within the.scope of representation, but found that under a totality of circumstances, the parties'

agreement on other matters excused the alleged refusal to negotiate over that subject. The

Board disagreed and reversed the proposed decision finding such an analysis inapplicable

where an employer refused to bargain over a subject based upon a denial of negotiability. (Id.,p., 6, citing John S. Swift Company, Inc. ( 1959) 124 NLRB 394.) The Board explained:

In such a case, the lawfulness of the employer' s position turns onthe negotiability of the subject. Where the subject is negotiable,the employer' s agreement on other matters is irrelevant.

Sierra, supra, pp. 6- 7.)

The precept of the cases cited above is applicable here: the lawfulness of the City' s

refusal to formally meet and consult turns on the negotiability of the subject. In this instance,

it has been concluded that the Measure B and the subsequent unilateral enactment of another

procedure for dispute resolution impacted the duty for consultation in good faith under MMBA

section 3507. Thus, it is irrelevant whether there was any significant delay, by the POA in

scheduling informal discussions with the City,30 because at the same time the City gave its

3 However, when the whole record is considered, there was not an unreasonable delay.It was undisputed that the POA had historically had difficulty in setting meeting times and thatboth parties' chief spokespersons were on vacation during overlapping relevant periods oftime. Thus, scheduling a meeting within two months of formal notice does not demonstrateinaction" by POA under the circumstances, especially when, as here, the employer' s

33

official ( verbal) notice of the proposed ballot measure on February 22, it announced that it had

no duty to negotiate over the issue as it believed it to be outside the scope of representation.

The City continued to maintain that position throughout the roughly two- month period of

communications with the POA before the April 19 City Council meeting. There was no

indication that the City ever changed its position and decided that there was a legal duty to

negotiate prior to taking action to schedule the election on May 17. Thus, any demand to

bargain by the POA in this situation would have been futile,31 and accordingly, the City' swaiver argument fails. ( Fairfield-Suisun, supra, PERB Decision No. 2262.)

Notably, the language of former section 1107, subdivision ( D)( 7), expressly

contemplated that the parties could negotiate an entirely different dispute resolution process

rather than adhere to the binding arbitration procedure enacted under the Charter. Thus, it was

possible that, without pursuing a complete or even partial repeal, the parties could have

modified the existing binding interest arbitration provision or agreed to utilize another process.

Instead of exploring this kind of negotiated option the City decided to take a unilateral

approach by proposing to abolish the City Charter provision. While the gamble involved in a

unilateral approach worked for the City with respect to Measure A, the same cannot be said

deadline" to complete negotiations is arbitrary and self-imposed. For instance, there is noinformation in the record to explain why the City Council decided it must schedule the electionfor August 30 and not for some later time in light of the POA' s contentions that there was aduty to first complete negotiations.

31 During argument at hearing, the City characterized the POA' s discussion in itsMarch 21 letter over the City' s obligation to meet and consult under MM13A section 3507regarding Measure B, and whatever dispute resolution process should replace it if completerepeal was proposed, as " vague and confusing," and therefore insufficient to trigger a validbargaining demand. I disagree. Especially when considering the prior communicationexchanged between the parties over negotiability, this letter clearly expressed for the first timethat if the City proposed a complete repeal of City Charter section 1107, then the parties wereobligated by MMBA section 3507 to negotiate over that and any subsequent dispute resolutionprocedure. Thus, even if not futile under the circumstances, I find that the POA made anadequate demand to meet and consult over the proposed changes.

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with respect to Measure B. An employer' s refusal to bargain is at its own peril if that refusal is

later found, as in this instance, to be unjustified. ( Trustees ofthe California State University

2012) PERB Decision No. 2287- H, p. 14.)Conclusion

The City violated the duty for consultation in good faith under MMBA section 3507

when it adopted a resolution to repeal section 1 107 without first completing pre-election

negotiations as required under Seal Beach. ( Seal Beach, supra, 36 Cal. 3d 591, 602.) This

action sustains the allegations at paragraphs 15 through 19 of the PERB complaint. As

previously stated, all other allegations in the PERB complaint are dismissed.

REMEDY

Pursuant to MMBA section 3509( b), PERB is empowered under section 3541. 3( 1) to:

T] ake any action and make any determinations in respect ofthese charges or alleged violations as the board deems necessaryto effectuate the policies of this chapter.

The City has violated the MMBA by failing its duty for consultation in good faith over

procedures for the resolution of disputes involving wages,hours and other terms and

conditions of employment by proposing a ballot initiative to repeal the existing dispute

resolution procedures in section 1 107 without holding pre- election negotiations, and by

unilaterally enacting a different dispute resolution procedure after section 1 107 was repealed

by voters. Therefore, the traditional remedy in a unilateral change case is appropriate. 32

County ofSacramento ( 2009) PERB Decision No. 2044- M; County ofSacramento ( 2008)

32 Part of such a remedy can include an order for the employer to " make whole" theemployee organization and unit employees for any losses suffered as a result of the unlawfulconduct. The POA seeks such a remedy here, however, the only evidence presented in thisregard was the expenditure of funds for the election to publicly campaign against approval ofthe ballot measures by voters. I conclude that such an award would go beyond PERB' s usualcompensatory remuneration and, therefore, I decline to order it.

35

PERB Decision No. 1943- M.) The City will be ordered to cease and desist from its unilateralaction and to restore the status quo that existed at the time of its unilateral action. In this

context, that requires restoration of the terms of former section 1. 107, subdivision ( D) to the

City Charter.

The City argues that PERB lacks authority to invalidate or amend a City Charter

provision because the statutes establishing PERI3' s remedial authority do not extend, either

explicitly or implicitly, to invalidating the votes of" qualified California voters" exercising

rights under the California Constitution to amend a city charter. The City further argues, citing

Seal Beach, that only the courts can invalidate a City charter amendment once adopted by

voters and filed with the Secretary of State, and that the California Constitution grants charter

cities the " absolute right" to propose charter amendments to the electorate. None of these

arguments are persuasive. First, the court in Seal Beach expressly found that the duty to

bargain in good faith under the MMI3A is a matter of statewide concern and that, as such,

general law prevails over the local enactments of a chartered city in regard to matters that

would otherwise be deemed a strictly municipal affair. (Seal Beach, supra, 36 Cal. 3d at p.

600, citing Professional Fire Fighters, Inc. v. the City ofLos Angeles ( 1963) 60 Cal: 2d 276,

292; see also Younger v. Board ofSupervisors ( 1979) 93 Cal. App. 3d 864, 870 [ preventingentry of charter amendments passed by initiative measure where in donflict with superior state

law].) The court then concluded that the employer could not avoid the pre- election meet and

confer requirement by use of its right to propose charter amendments. (Seal Beach, supra, at

p. 602.) Thus, the City had no right to propose amendments to the Charter that violate theMMBA.

Next, Seal Beach, and another case cited by the City for the proposition that `only

courts" can invalidate a charter amendment once adopted by voters, pre-dates the Legislature' s

36

granting to PERB exclusive initial jurisdiction to determine whether the charge of unfair

practice is justified and, if so, the appropriate remedy necessary to effectuate the purposes ofthis chapter. ( Seal Beach, supra, 36 Ca1. 3d 591, 602; MMBA, 3509(b).) In Local 21,

International Federation of Professional and Technical Engineers, AFL-CIO v. Thornton C.

Butch, .h. (1995) 40 Cal. App.4th 670 ( Professional and Technical Engineers), the court

recognized PERB' s exclusive jurisdiction to determine whether a ballot initiative that amended

the charter of the city and county of San Francisco divested a city school district of its rights

under the EERA. The court stated:

We agree with the trial court that the issues presented in thiscase especially the extent to which local regulation ofemployment matters as prescribed by the charter might besuperseded by matters of statewide concern as set out in theEERA is a matter properly decided in the first instance, byPERB.

d. at p. 676.)

Thus, courts have recognized that where employment matters under a city charter may

be in conflict with matters of statewide concern under collective bargaining laws, PERB, not

the courts, have exclusive initial jurisdiction. (See also United Public Employees v. Public

Employment Relations Bd. ( 1989) 213 Cal. App.3d 1 1 19.) Furthermore, the court recognized

PERB' s " broad remedial powers" under the statutes it administers in answer to the union' s

question in that case of whether PERB could fashion an effective remedy. (Professional and

Technical Engineers, supra, 40 Cal. App.4th. at p. 679.) Thus, it is incongruent with the nature

of PERB' s