Thursday, August 8, 2019

Relying Heavily on Mastagni Holstedt Case Law, PERB Clarifies That Peace Officer Unions Fall Under Its Jurisdiction

In 2016, the Association of Orange County Deputy Sheriffs (“Association”) filed an unfair practice charge against the County of Orange (“County”) alleging that the County violated their duty to meet and confer in good faith when they unilaterally made changes to the Office of Independent Review (“OIR”).  The County attempted to dismiss the case by arguing that PERB did not have jurisdiction over cases brought by peace officer organizations, citing a 2000 amendment to the MMBA that excluded peace officers from PERB’s jurisdiction.

The ALJ ultimately held that PERB has primary jurisdiction over cases brought by employee organizations that solely represent sworn peace officers, following precedent set in County of Santa Clara (2015) PERB Decision No.  2431-M.  A case Mastagni Holstedt successfully argued. The Board affirmed, relying heavily on Mastagni Holstedt’s arguments, adding that the plain language and legislative intent of the 2000 MMBA amendment could lead to no other conclusion.

It all started in 2016, when the County implemented changes to the OIR that included imposing new staff requirements, granting additional access to confidential records, changing how the County selects OIR’s executive director, and changing how OIR staff advise County personnel.  The County made these changes without meeting and conferring with the Association.  The Association filed an unfair labor practice claim with PERB, alleging that the County violated the MMBA when it changed the ordinance without giving the Association an opportunity to meet and confer over the decision or its effects. 

The County responded by arguing that PERB did not have jurisdiction over the claim because the Association represented peace officers and thus fell within an exception established by Government Code § 3511.  A 2000 amendment to the MMBA, Government Code § 3509, states that PERB has initial jurisdiction over MMBA violations.  (Gov. Code § 3509.)  Government Code § 3511 provided an exception to this rule, stating that § 3509 did not apply to “persons who are peace officers as defined in § 830.1 of the Penal Code.”  (Gov. Code § 3511.)  In Coachella Valley Mosquito & Vector Control Dist. v. California PERB (2005) 35 Cal.4th 1072, the California Supreme Court acknowledged this exception, stating explicitly that peace officers are exempt from PERB’s jurisdiction pursuant to Gov. Code § 3511.  Subsequent cases such as Paulsen v. Local No. 856 of Internat. Bhd. Of Teamsters (2011) 193 Cal.App.4th 823 addressed this issue and likewise affirmed that peace officers are exempt from PERB’s jurisdiction. 

The County argued that the above California Supreme Court cases establish that § 3511 deprives PERB of jurisdiction over claims “impacting” peace officers, including claims brought by organizations representing peace officers.  They also pointed out that courts have heard disputes brought by employee organizations that represent peace officers, which demonstrates that courts, and not PERB, have jurisdiction over such cases. 

The ALJ rejected the County’s argument, stating explicitly that PERB has jurisdiction over claims brought by employee organizations, including those representing peace officers.  In doing so, the ALJ followed precedent set in Santa Clara (2015) PERB Decision No. 2431-M.  In Santa Clara, the Board held that PERB has authority to hear charges brought by employee organizations, “including employee organizations representing or seeking to represent units including persons who are peace officers.” 

The Board affirmed the ALJ’s holding, stating again that PERB has primary jurisdiction over claims brought by employee organizations covered by the MMBA, including those that represent bargaining units composed partially or entirely of peace officers.

In its reasoning, the Board conducted a thorough statutory interpretation analysis of Government Code § 3511.  The plain language of § 3511 clearly states that § 3509 “shall not apply to persons who are peace officers.”  The Board emphasized that this reference to “persons” clearly means natural persons rather than associations or organizations, as the MMBA frequently articulates the difference between people and organizations, and thus would have done so here if both were intended to be included.  Further, whether the complainant is a person or an organization is dispositive when it comes to PERB standing, so the Legislature would have mentioned both if that was their intent.  Previous drafts of § 3511 referenced “any recognized employee organization representing persons who are peace officers” instead of “persons who are peace officers,” demonstrating that the Legislature was aware of the difference between the two and intentionally changed it to exclude organizations. 

The Board also pointed out that accepting the County’s argument would lead to absurd results when it comes to the use of factfinding panels to aid in the resolution of bargaining disputes between employee organizations and public agencies.  When public employers and employee organizations are unable to reach agreement, they may request that their differences be submitted to a factfinding panel.  PERB is required to be involved in these factfinding panels by selecting a neutral chairperson.  This process is available to all public employee organizations without regard to whether the employee organization represents peace officers.  Thus, if the County’s interpretation was correct, PERB would be involved in factfinding panels for employee organizations representing peace officers, but would not have the jurisdiction to otherwise be involved.

Finally, in addressing the County’s arguments, the Board soundly rejected the idea that § 3511 meant to exclude all cases “impacting” peace officers.  The Board held that the County had placed too much weight on a footnote in Association v. County of El Dorado (2016) 244 Cal.App.4th 950, which cited § 3511 as authority for the statement that “labor disputes relating to peace officers… are not subject to PERB jurisdiction.”  The Board argued that this footnote was an unnecessary explanatory comment not related to the issue of that case, and thus was merely dicta with no binding authority. 

After making the determination that PERB indeed had jurisdiction over the case, the Board turned to examine whether the County had committed an unfair labor practice.  Ultimately, both the ALJ and Board dismissed the Association’s claim on its merits, stating that the changes the County made to OIR policy fell outside the scope of representation and was inadequate to support a claim that the County made an unlawful unilateral change. 

This case serves an important reminder that while Government Code § 3511 excludes from PERB’s jurisdiction claims brought by Penal Code § 830.1 peace officers, PERB has primary jurisdiction over claims brought by employee organizations covered by the MMBA, including those that represent peace officers. This includes organizations that represent or seek to represent bargaining units composed partially or entirely of § 830.1 peace officers.