PERB RULES PEACE OFFICER UNIONS CAN FILE UNFAIR LABOR PRACTICE CHARGES

LAURIE M. BURGESS
Attorney
Messing Adam & Jasmine LLP

As many readers know, labor relations between local public agencies and their employees and labor unions are governed by the Meyers-Milias-Brown Act (MMBA), Government Code Section 3500, et seq. When MMBA was enacted in 1968, and until 2000, whenever employees or their union believed that an employer was violating MMBA, their only avenue of redress, absent a remedy in the collective bargaining agreement, was to file a lawsuit in court. Lawsuits are expensive, and employees and unions were often dissuaded from filing suit due to cost.

Other California labor relations laws (for example, the Dills Act, which governs state employee labor relations) allowed employees and unions to challenge alleged violations of labor relations laws by employers through an unfair labor practice (ULP) charge filed with the Public Employment Relations Board (PERB). PERB is an administrative agency with expertise in labor relations. Through administrative law judges (ALJs) and its governor-appointed board, it decides ULP charges and issues decisions, which can be found at perb.ca.gov/Decisions.aspx. Courts are deferential to its rulings.

In 2000, however, Governor Gray Davis signed Senate Bill 739, which enacted Government Code Section 3509. It allowed employees, unions and agencies under MMBA to assert ULP claims with PERB for the first time. But with regard to peace officers, Section 3509 states: “The changes made [to bring MMBA claims under PERB’s jurisdiction] shall not apply to persons who are peace officers as defined in Section 830.1 of the Penal Code.”

This language proved ambiguous. Union-side practitioners, while conceding it precluded individual peace officers from bringing ULP claims, argued that it allowed peace officer unions to bring ULP claims. But for years, whenever peace officer unions filed a ULP charge, management argued that Section 3509 was a complete bar to all peace officers — unions or individuals — from filing charges with PERB.

Fortunately, PERB has now given us a definitive ruling in County of Orange, PERB Dec. No. 2657-M: Peace officer unions can file ULP charges with PERB.
In County of Orange, a unit composed of deputy sheriffs filed an unfair practice charge alleging that the County’s unilateral changes to its Office of Independent Review (OIR) violated its duty to meet and confer. The OIR was established to advise the Sheriff-Coroner regarding serious in-custody incidents, as well as complaints against law enforcement personnel. The County advised the union that it wanted to (1) extend the OIR’s authority to include the District Attorney’s Office; (2) require OIR staff to be employees rather than independent contractors; (3) provide OIR access to confidential records that County Counsel had access to; (4) change hiring procedures for OIR’s executive director; and (5) change how OIR provided advice to County personnel. When it notified the union of these proposed changes, the County advised it that OIR would not be authorized to “affect the wages, hours, or working conditions of any County employee represented by a recognized employee organization.”

In response to the union’s ULP charge, the County asserted that PERB lacked jurisdiction over the unit. It also claimed an inherent right to implement these changes without bargaining. At the close of the hearing, the ALJ held that PERB had jurisdiction over the ULP charge, but dismissed the charge on the merits, finding that “the directions an employer gives its legal counsel about how to provide it with legal advice is so attenuated from the employment relationship that it is outside the scope of representation.”
Both parties appealed the ALJ’s decision to PERB, which affirmed that the County did not violate the MMBA in implementing the changes it had made, since “[f]undamental managerial decisions regarding the merits, necessity, or organization of public services … are outside the scope of representation and therefore not subject to the MMBA’s meet-and-confer requirement.” But, more importantly, PERB also affirmed the ALJ’s conclusion regarding its jurisdiction over bargaining units composed exclusively of peace officers. Acknowledging that peace officers as “natural persons” were excluded from its jurisdiction, PERB noted that nothing in the MMBA similarly excluded labor organizations representing peace officers from the act’s protections. PERB reasoned that this decision was fully consistent with the overall scheme and purpose of the MMBA, which frequently addresses and defines different “roles, rights, and relationships” among and between “public employees, employee organizations, and public agencies.”

This decision confirms that peace officer unions governed by MMBA can file ULP charges with PERB. Superior Court judges often struggle with labor issues, and this allows peace officer unions to tap into PERB’s experience and expertise in administering the MMBA. It also provides a less expensive and less formal avenue than litigating in court. PERB’s procedures require parties to engage in settlement discussions under its auspices before going to hearing. And when a settlement conference, hearing or other formal proceeding is necessary, parties covered under the MMBA — including those in peace officer unions — must be released without loss of pay to “testify or appear as the designated representative of the exclusive representative” at such proceedings. No similar right exists when litigating in state court.

About the Author
Laurie M. Burgess is an attorney with Messing Adam & Jasmine LLP and serves as a PORAC LDF panel attorney. She has devoted her career to representing public- and private-sector unions, including representing the teachers’ union in Chicago for 18 years and serving as in-house counsel to the California Teachers Association for five years. In addition to handling arbitrations and violations of public-sector labor law, Laurie has successfully handled complex litigation in matters including employment discrimination, wrongfully denied health-care benefits, and constitutional violations in state and federal courts, including courts of appeal.