PERB Clarifies Jurisdiction Over "Mixed Unit" Associations with Peace Officer and Non-Peace Officer Members

In County of Santa Clara (2015) PERB Decision 2431-M, the Public Employment Relations Board  found PERB has jurisdiction over charges brought by labor associations representing mixed units.

This case involved the Santa Clara County Correctional Peace Officers Association, which represents one bargaining unit, the Correctional Employees Unit.  That unit is composed of peace officers under Penal Code section 830.1(c) and non-peace officer correctional officers.  This type of unit is sometimes called a "mixed unit."

There has been a dispute about whether PERB has jurisdiction over charges brought by or against labor associations representing peace officers, but also other employee classifications. The reason there is a dispute is that Government Code section 3511, part of the MMBA, exempts "persons who are peace officers" from the 2001 changes to the MMBA that gave PERB jurisdiction over the Act. Some parties claimed this meant PERB does not have jurisdiction over claims brought by labor associations representing mixed units, since those units contain peace officers.  The Board heard oral argument on this issue two years ago, but that case settled before the Board issued a decision.

Since this case also involved a mixed unit, the Board clarified its jurisdiction over these units.  The Board wrote "we make explicit PERB's authority to hear charges, such as the present one, that are brought by employee organizations, including employee organizations representing or seeking to represent units including persons who are peace officers."

The Board explained, "MMBA section 3511 precludes jurisdiction only with respect to charges brought by peace officers, not employee organizations."  The Board found support for this distinction in the MMBA's own definition of person which refers to a natural person, distinguishing it from an entity, such as a labor association.  Likewise, the Board noted the Legislature gave it jurisdiction over factfinding requests without a restriction on mixed units.

Mastagni Holstedt senior associate Jeffrey R. A. Edwards represented the Santa Clara County Correctional Peace Officers Association in the matter.

PERB: Sheriff’s Office Must Meet and Confer Over Peace Officer Background Evaluation Process for Correctional Officers

In County of Santa Clara (July 25, 2013) PERB Dec. No. 2321-M, the Public Employment Relations Board ruled a background evaluation process for transitioning correctional officers to correctional deputies with peace officer status is a mandatory subject of bargaining under most circumstances, overruling a contrary decision by PERB Office of General Counsel.

Santa Clara is one of the counties in California that employs non-peace officer correctional officers in county jails. In 2010, the Sheriff’s Office decided to transition to correctional deputies under Penal Code section 830.1(c) and had some discussions with the Santa Clara Correctional Peace Officers Association about the process for transitioning existing employees. Initially, the Sheriff’s Office claimed the process was voluntary and if officers wanted to stay as correctional officers they would be grandfathered in.

But then, the Sheriff’s Office told officers if they did not apply to be peace officers they would be denied promotions, lose assignments, and could lose their jobs. When the union would not concede on some of the details of the process, the Sheriff’s Office imposed, claiming they did not have to meet and confer with the union or go through impasse procedures.

PERB rejected the Sheriff’s Office’s claims. PERB ruled how the Sheriff’s Office would conduct the background evaluation process for becoming a peace officer was a mandatory subject of bargaining. PERB explained the evaluation process was different than a typical background process because it was for current employees.

PERB also made new law, distinguishing an earlier case about background checks. In Sutter County In-Home Supportive Services Public Authority (2007) PERB Dec. No. 1900-M, PERB said some background checks are not subject to meet and confer. In this case, PERB explained key elements of how to do a peace officer background process are discretionary. PERB also found the correctional officers already had a comprehensive background evaluation when they were first hired and that jails were fundamentally different than people’s homes.

Therefore, PERB ruled “that where an employer imposes on employees, who have already undergone a background evaluation as a condition of employment, a further such evaluation as a condition of continued assignment to the employee’s present position, the employer’s decision [is] within the scope of representation under the MMBA."

Mastagni attorney Jeffrey R. A. Edwards represented the Santa Clara County Correctional Peace Officers Association in the matter.

PERB to Hold Oral Arguments on Jurisdiction Over Peace Officers

PERB will hold oral arguments in Lompoc Peace Officers Association v. City of Lompoc, to decide whether PERB has jurisdiction over "mixed units," bargaining units composed of both sworn and non-sworn employees.  This is the first time in about ten years PERB has scheduled oral arguments.

Government Code section 3511 is at the heart of the issue.  In 2000, the Legislature gave PERB jurisdiction over labor disputes in agencies covered by the MMBA.  But it made an exception.  Government Code section 3511 says those changes "shall not apply to persons who are peace officers as defined in Section 830.1 of the Penal Code."  There have been some disputes about what section 3511 really means.

In this case, the issue is whether PERB has authority to make peace officers whole in a bargaining unit composed of both peace officers and non-peace officers.  PERB initially decided the employer broke the law and ordered it to make the affected employees whole, but only the non-sworn employees.  The POA appealed, arguing the same remedy should apply to all of the employees in the bargaining unit, including the peace officers.  Oral argument will take place at PERB's Sacramento headquarters on June 13, 2013 at 2:00 p.m.

PERB: Peace Officers Can Choose Mixed Unit or Peace Officers-only Unit

In SEIU Local 1021 v. County of Calaveras (Calaveras County Public Safety Employees Association) (April 18, 2012) PERB Decision No. 2252-M, PERB held that "while MMBA section 3508(a) grants peace officers the affirmative right to join or participate in peace-officer only units, nothing in that section requires peace officers to exercise this right nor prohibits them from being in mixed units if they so choose."

Government Code section 3508(a) allows peace officers to select representation in a peace officer-only bargaining unit.  It reads in part, "the governing body may not prohibit the right of its employees who are full-time "peace officers"... to join or participate in employee organizations which are composed solely of these peace officers."  In Calaveras County, county rules went further and required "Peace officers and limited term peace officers must be represented in separate units composed solely of such peace officers."

The Calaveras County Public Safety Employees Association defended their right to have a mixed unit.  CCPSEA is like many public safety labor unions that include both peace officers and other public safety professionals like correctional officers, dispatchers, evidence technicians, and code enforcement officers.  PERB decided the local rules prohibiting mixed units violated the MMBA.  The decision clarifies that peace officers have the right to have mixed units if they want to, while preserving their right to have peace officer-only units if they so choose.

Court Upholds Peace Officers' Right to Sue Over Dissemination of Personnel Records

In Olivera et al. v. Siemens, et al., Case No. S-CV-0029390, the Placer County Superior Court upheld peace officers' right to seek redress for dissemination of their personnel records, overruling a city's demurrer.  The officers filed suit for invasion of privacy after a former IA sergeant took and distributed a copy of their IA files to officers at another agency.  The city then filed a demurrer, challenging the ability of peace officers to bring a civil suit over disclosure of their personnel files. The Court found the officers could proceed with their claims for invasion of privacy and intrusion into private affairs, noting the alleged dissemination of their personnel records was "sufficiently outrageous" to trigger liability under Hernandez v. Hillsides, Inc. (2009) 47 Cal.4th 272.

The Court also upheld the officers' right to proceed with their claims on intentional infliction of emotion distress, negligent infliction of emotion distress, and injunctive relief ordering the defendants to retrieve and destroy unlawfully disseminated records.  The plaintiffs are represented in the matter by Mastagni Law attorneys David E. Mastagni, James B. Carr and Isaac S. Stevens. 

Court Blocks Dissidents' Attempt to Split Correctional Peace Officers' Union

The Santa Clara County Superior Court blocked an attempt by dissident union members to split the Santa Clara County Correctional Peace Officers' Association in two.  In May 2011, a minority of SCCCPOA board members, including the vice president, formed a rival union and filed a petition to represent new peace officer classifications.  The petition was filed months after the window period for decertification and unit modification petitions.

However, rather than reject the untimely petition, the County began to process the petition and attempted to schedule a decertification election even though SCCCPOA and the County were in the middle of contract negotiations.  The County claimed it should be excused from following the established window period because it was impossible for the rival group to comply and asserted the County could ignore the rules in special circumstances.  SCCCPOA then filed a Petition for Writ of Mandate to compel the county to reject the untimely petition.

The Court granted SCCCPOA's petition, rejecting the County's claims.  First, the Court found the local rules establishing window periods for unit modification and decertification petitions are mandatory.  Second, the Court noted there is no "impossibility" exception to Government Code section 3507.1, which requires local agencies to follow their local rules adopted pursuant to the MMBA.  Finally, the Court held the MMBA does not permit case-specific decisions to ignore local rules.  As a result, the Court agreed to issue a writ of mandate compelling the County to reject and refuse to process the rival group's petition.  Mastagni Law attorneys David P. Mastagni, Kathleen N. Mastagni Storm, and Jeffrey R. A. Edwards represented SCCCPOA in the action.

Legal Issues on the Horizon for AB 646

AB 646 provides factfinding for all public employees covered by the Meyers-Milias Brown Act, unless the parties have binding interest arbitration. On November 8, 2011, the Public Employment Relations Board (PERB) held a meeting in Oakland on the implementation of AB 646. The meeting previewed two issues public safety unions will likely face as the law goes into effect:

1) Can employers dodge fact-finding by refusing to go to mediation?

AB 646 provides for factfinding after mediation. However, many local rules make mediation voluntary, raising a concern some employers may refuse to go to mediation to avoid fact-finding and then move unilaterally to impose terms and conditions as soon as impasse is reached in negotiations. Government Code section 3505.7 states, “After any applicable mediation and factfinding procedures have been exhausted, but no earlier than 10 days after the factfinders’ written findings of fact and recommended terms of settlement have been submitted to the parties pursuant to Section 3505.5 a public agency . . . may, after holding a public hearing regarding impasse, implement its last, best, and final offer. . .” This language mandates factfinding, a review of a factfinders’ report and a public hearing prior to an employer imposing terms and conditions of employment. Thus, if an employer refuses to engage in factfinding, it cannot comply with the terms of the statute and should be barred from imposing terms.

2) Does AB 646 affect PERB jurisdiction over Penal Code section 830.1 peace officers?

Government Code section 3511 exempts Penal Code section 830.1 peace officers from PERB’s exclusive jurisdiction, allowing them to go to superior court instead. Since AB 646 was adopted, some have argued it gives PERB more authority over peace officers because it requires PERB to “select a chairperson of the factfinding panel.” However, the more sensible view is that AB 646 does no more than it says: PERB appoints the chair of factfinding panels, but if an unfair labor practice arises during the factfinding process, Penal Code section 830.1 peace officers’ labor associations can continue to seek remedies in superior court.

The next step in implementing AB 646 is for PERB to adopt regulations interpreting the statute. PERB is accepting comments and suggests until November 18, 2011 as it prepares to roll out regulations prior to the law's effective date of January 1, 2012.

Peace Officers Status and Safety Put at Risk

In Lake County, California, the Lake County Correctional Officer's Association (LCCOA) has filed a lawsuit to combat Sheriff Frank Rivero's attempt to revoke the peace office status of Lake County correctional officers.

The purpose for the lawsuit is because according to Government Code section 26605.1, local governments cannot change peace officers' status involuntarily. Not only that, but Rivero's attempt to unilaterally change the Lake County correctional officers' status also violates the Meyers-Milias Brown Act, requiring the Sherrif to "meet and confer in good faith" with the Officers' Association before altering their working conditions.

Rivero claims in defense, "I haven't violated anything." Rivero claims that he was not trying to take anything away, but was rather just offering to meet and confer with the officers. He also asserts that the correctional officers were never technically peace officers, because, "They never completed a required POST certified academy, the POST field training program or completed the required probationary period."

Lake County correctional officers became peace officers in 2008 after the Legislature amended the Penal Code to allow peace officers to be employed in jails. The former Sheriff, Rodney K. Mitchell had extended peace officer status to officers, issuing new identification cards identify the officers as such. As part of the peace officer role, correctional officers could carry firearms whenever they were on duty, except in the jail.

A press release from Mastagni Holstedt additionally states how Rivero's changes would endanger correctional officer health and safety.  "Without peace officer status, Lake County correctional officers cannot carry firearms unless transporting prisoners or guarding hospitalized prisoners. However, without firearms, officers are unarmed targets," according to Mike Silva, president of the Lake County Correctional Officers' Association. "The officers perform several public duties in uniform without inmates present and are now without the means to respond to life-threatening situations."

The LCCOA hopes its lawsuit will convince Rivero to leave the existing policies in place, and enter negotiations with the Officers' Association for any future alterations. The Lake County Correctional Officers' Association is represented by Mastagni Holstedt APC, a Sacramento-based law firm. The Lake County Record-Bee has more information on the case and the law firm representing the peace officers, which is "the largest law firm in California representing peace officers and other public safety professionals."

According to the Record-Bee, "In an effort to avoid litigation, counsel for the Officers' Association sent letters to the Sheriff on March 15 and 17, demanding he rescind his unilateral changes and comply with the Government Code. In response, County Counsel refused to restore officers' peace officer status and negotiate with the association in good faith before unilaterally adopting these changes."

Hopefully the peace officers of Lake County can continue their honored and necessary profession without jeopardizing their health or safety, and an amicable solution can be reached in a timely fashion.