Mixed Peace Officer/Non-Peace Officer Units Can Now Challenge Perb’s Failure To Issue A Complaint
Posted by Jonathan Yank
The California Supreme Court recently decided International Association of Fire Fighters, Local 188, AFL-CIO v. Public Employment Relations Board (Jan. 24, 2011) 2011 WL 198103, involving the City of Richmond’s decision to lay off 18 firefighters over fiscal concerns. The Court decided two issues of importance to public sector employees:
First, the Court held that the City of Richmond (“City”) did not have to bargain over its ultimate decision to lay off firefighters, but was required to bargain over the effects of the layoff decision, such as the number and identity of the employees to be laid off and the timing of the layoffs.
Second, the Court set important precedent in holding that a public employee association can seek judicial review of a decision by the Public Employment Relations Board (PERB) not to issue a complaint on the association’s unfair labor practice charge. (Although this precedent does not apply to peace officer-only groups who are excluded from PERB’s jurisdiction under the Meyers-Milias-Brown Act (MMBA), it will apply to mixed units that contain both peace officers and non-peace officers (e.g., dispatchers, community service officers, parking enforcement, etc.).)
Facts
The case arose in 2003 when the City laid off 18 firefighters as a result of a significant budget shortfall. The International Association of Fire Fighters, Local 188 (“Local 188”), demanded to bargain over the City’s layoff decision and argued that other cost-saving measures were available that would make the layoffs unnecessary. Local 188 did not make a separate demand to bargain over the effects of the decision. The City declined the request to bargain over the layoff decision itself.
As a result, Local 188 filed an unfair labor practice charge with PERB, asserting that the reduction in staffing levels threatened employee safety and would increase remaining employee workloads, thus falling within the mandatory scope of bargaining. PERB dismissed the pertinent portion of the charge, stating that the decision to lay off personnel is not within the scope of bargaining. The dismissal further noted that, while the effects of such a decision are subject to bargaining, Local 188 did not seek to bargain over the effects of the layoffs.
Local 188 filed a petition for Writ of Mandate in the Superior Court, challenging PERB’s refusal to issue a complaint as an abuse of its discretion and a failure to perform its mandatory ministerial duty. PERB and the City disputed the court’s jurisdiction to review PERB’s decision not to issue a complaint.
Both the Superior Court and the Court of Appeal found that judicial review of PERB’s refusal to issue a complaint on the unfair practice charge is available in limited circumstances, but each ruled that the decision to reduce staffing levels through layoffs is a managerial prerogative and not subject to bargaining. They also confirmed that the Union has a right to bargain over safety and workload issues impacting the “remaining employees” as a result of the reduction in staffing.
The California Supreme Court’s Decision: A Decision by PERB Not to Issue a Complaint on an Unfair Practice Charge is Subject to Judicial Review on Limited Grounds
The California Supreme Court affirmed the Court of Appeal’s determination that, although PERB’s decision not to issue a complaint on the unfair labor practice charge is generally not subject to judicial review, there are limited circumstances when a party can seek judicial review. Relying heavily on precedent under the National Labor Relations Act and California’s Agricultural Labor Relations Act, the Court affirmed that limited review is available when:
- The decision violates a constitutional right.
- The decision exceeds the Board’s grant of authority.
- The decision is based on an erroneous construction of an applicable statute.
The Court found that eliminating all avenues of judicial review, as argued by PERB and the City, would raise “serious constitutional issues,” because there would be no avenue to seek relief. Given these constitutional considerations, the Legislature would have had to clearly indicate in the MMBA that superior courts are prohibited in all circumstances from exercising jurisdiction to review a PERB decision refusing to issue a complaint. Since it did not, limited judicial review is warranted. Judicial review was warranted in this particular case because Local 188’s petition charged an erroneous construction of Government Code Section 3509 (part of the MMBA) by PERB.
In reaching this decision, the Court stressed that judicial review is not available when a party alleges that there was insufficient evidence supporting PERB’s factual findings or that PERB misapplied the law to the facts. The Court also cautioned that “courts must narrowly construe and cautiously apply the exceptions we here recognize.”
Although this decision sets an important precedent, its practical impact is limited. First, under the MMBA, although PERB has jurisdiction over labor relations for many city and county employees, its jurisdiction does not include bargaining units comprised exclusively of peace officers, management employees and employees of the City of Los Angeles or the County of Los Angeles. Thus, this component of the Supreme Court’s decision has no direct relevance to peace officer-only units. Moreover, because the scope of judicial review is strictly limited to the three circumstances described above, there are limited instances where it can be applied. The most common of these circumstances is likely to be when it is alleged that PERB’s refusal to issue a complaint was based on an erroneous statutory interpretation. However, in light of the Supreme Court’s admonition to apply its holding narrowly, most such decisions by PERB will remain irreversible.
The Decision To Lay Off Employees Is A Management Prerogative
The Court also upheld the Court of Appeal’s determination that the City was not required to meet and confer prior to making the initial decision to lay off the 18 firefighters. The Court rejected Local 188’s argument that the City was obligated to negotiate because the layoffs affected the workload and safety of the remaining firefighters.
Local 188 based its argument on Firefighters Union v. City of Vallejo (1974) 12 Cal.3d 608 (“Vallejo”), where the Supreme Court held that, due to the dangerous nature of firefighting, to the extent the decision to lay off some employees affects the workload and safety of the remaining workers, bargaining may be required. Local 188 argued that the Vallejo decision requires a public employer to refrain from implementing layoffs until it engages in collective bargaining with the union representing the impacted employees.
The Court disagreed with Local 188’s interpretation of Vallejo, instead finding that the case stands for the proposition that, under the MMBA, a local entity may unilaterally decide that financial necessity requires layoffs, but it must bargain over the effects of that decision on the remaining employees. Thus, the Court reaffirmed that a public employer must give its employees an opportunity to bargain over the implementation of the decision, including the number of employees to be laid off, the timing of the layoffs, and the effects of the layoffs on the workload and safety of the remaining employees.
Ultimately the Court found that PERB properly refused to issue a complaint in this case because Local 188 only sought to bargain over the ultimate decision to lay off firefighters. Because Local 188 admitted that it had not submitted any specific proposals regarding firefighter workload and safety issues, there was no refusal by the City to engage in bargaining over the impact of the layoffs.
It is important to note that the Court distinguished the situation at issue here (a layoff decision motivated by a desire to reduce labor costs and not involving transferring work outside the bargaining unit) and a transfer of bargaining unit work to non-unit employees (such as retired annuitants or private contractors). In the latter situation, the decision to transfer work is a mandatory subject of bargaining.
The take-away message from this case is that an employer can unilaterally decide to lay off employees, but it must meet and confer over the impact that decision will have on the remaining employees when a request to bargain is made by the exclusive representative. A union seeking to preserve its rights, including its right to challenge an employer’s failure to bargain over the impact of a layoff decision, must specifically request to bargain over the effect of the layoffs, such as the timing of the layoffs, the number of employees to be laid off and the effect on workload and safety of remaining employees. Failing to demand to negotiate over these issues may waive a union’s right to bargaining at all.
Jonathan Yank is a partner, and Jennifer Stoughton is an associate, in the San Francisco office of Carroll, Burdick & McDonough LLP, a labor law firm specializing in the representation of
peace officers.