COURT OF APPEAL STATE OF CALIFORNIA FIRST APPELLATE DISTRICT, DIVISION FIVE CITY AND COUNTY OF SAN FRANCISCO. vs.

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1 COURT OF APPEAL STATE OF CALIFORNIA FIRST APPELLATE DISTRICT, DIVISION FIVE CITY AND COUNTY OF SAN FRANCISCO vs. Appellant, INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 39 From an Order of the San Francisco County Superior Court The Honorable James L. Warren Court of Appeal Case No. A Superior Court Case No AMICUS CURIAE BRIEF OF THE CALIFORNIA STATE ASSOCIATION OF COUNTIES AND LEAGUE OF CALIFORNIA CITIES IN SUPPORT OF APPELLANT CITY AND COUNTY OF SAN FRANCISCO Jennifer B. Henning (SBN ) California State Association of Counties 1100 K Street, Suite 101 Sacramento, CA Telephone: (916) Facsimile: (916) Attorney for Amici Curiae California State Association of Counties and League of California Cities Respondent.

2 TABLE OF CONTENTS TABLE OF AUTHORITIES... ii I. INTRODUCTION... 1 II. INTEREST OF AMICI CURIAE... 1 III. ARGUMENT... 3 A. PERB s jurisdiction is limited to matters within the scope of the MMBA... 3 B. Courts interpret governing statutes and local regulations without ceding jurisdiction to PERB... 5 C. Courts are capable of performing statutory interpretation in this area of the law; PERB s expertise is not required... 8 IV. CONCLUSION WORD COUNT CERTIFICATION i

3 TABLE OF AUTHORITIES CASES California Teachers Assoc. v. Livingston Union School Dist. (1990) 219 Cal.App.3d Claremont Police Officers Assoc. v. City of Claremont (2006) 39 Cal.4th Coachella Valley Mosquito & Vector Control Dist. v. California Public Employment Relations Bd. (2005) 35 Cal.4th Dixon v. Board of Trustees of the Saugus Unified School District (1989) 216 Cal.App.3d , 9 Henning v. Industrial Welfare Commission (1988) 46 Cal.3d San Francisco Fire Fighters Local 798 v. City and County of San Francisco (2006) 38 Cal.4th San Lorenzo Education Association v. Wilson (1982) 32 Cal.3d United Steelworkers of America, Local 8599, AFL-CIO v. Board of Education of the Fontana Unified School District (1984) 162 Cal.App.3d United Teachers of Ukiah v. Bd of Education of Ukiah Unified School Dist. (1988) 201 Cal.App.3d STATUTES Ed. Code , 7 Gov. Code , 4 Gov. Code 3500 et seq...1, 3 Gov. Code Gov. Code Gov. Code 3512 et seq....3 Gov. Code , 7 Gov. Code 3540 et seq...3, 6 ii

4 Gov. Code Gov. Code et seq...3 Gov. Code et seq....3 Pub. Utilities Code et seq...3 REGULATIONS Cal. Code Regs., tit. 8, 32604(d)...4 iii

5 I. INTRODUCTION The Public Employment Relations Board (PERB) is a quasi-judicial administrative agency of limited jurisdiction. It is charged with administering specific collective bargaining statues governing public employees, including the Meyers Milias Brown Act (MMBA) (Gov. Code 3500 et seq.). This case poses the question of whether PERB has exclusive initial jurisdiction where the controversy at issue does not involve the conduct of the parties or a violation of the MMBA, but interpretation of a City s charter. The California State Association of Counties and the League of California Cities contend PERB does not have exclusive initial jurisdiction in such situations. The role of interpreting statutes and local charters belongs to the courts, and nothing in the law dictates a different result. CSAC and the League therefore urge this Court to find that PERB does not have exclusive initial jurisdiction when the issue involves statutory interpretation rather than conduct of public employers and employees covered under the MMBA. II. INTEREST OF AMICI CURIAE The California State Association of Counties (CSAC) is a non-profit corporation with all of the state s 58 counties as members. CSAC sponsors a Litigation Coordination Program, which is administered by the County Counsels Association of California and is overseen by the Association s 1

6 Litigation Overview Committee, comprised of county counsels throughout the state. The Litigation Overview Committee monitors litigation of concern to counties statewide and has determined that this case is a matter affecting all counties. The League of California Cities (League) is an association of 478 California cities dedicated to protecting and restoring local control to provide for the public health, safety, and welfare of their residents, and to enhance the quality of life for all Californians. The League is advised by its Legal Advocacy Committee, which is comprised of 24 city attorneys from all regions of the State. The Committee monitors litigation of concern to municipalities, and identifies those cases that are of statewide or nationwide significance. The Committee has identified this case as being of such significance. Members of CSAC and the League have a significant stake in the outcome of this case. Cities and counties are responsible for delivering an array of critical public services, including fire and police services, psychiatric emergency services, airport operations, detention services, child protective services, waste water operations, and landfill operations. Considerable management skills are required to adequately plan, budget for, and deliver the services the public relies upon. This includes the process of addressing labor costs, which are a substantial component of city and county budgets. When disputes arise that relate to interpretation of 2

7 applicable statutes and charter provisions governing the labor process, courts have and should exercise jurisdiction without requiring the issue to first be heard by PERB. Nothing in the law requires a different result. III. ARGUMENT A. PERB S JURISDICTION IS LIMITED TO MATTERS WITHIN THE SCOPE OF THE MMBA. PERB is designed to administer seven collective bargaining statutes. 1 It is responsible for adjudicating disputes where the alleged unlawful conduct occurred under one of the Acts administered by PERB. It does not, however, have jurisdiction over every aspect of employment. The purpose and intent of the MMBA is to promote full communication between public employers and their employees by providing a reasonable method of resolving disputes regarding wages, hours, and other terms and conditions of employment. (Gov. Code 3500, subd. (a).) The statute is further intended to provide a uniform basis for recognizing the right of public employees to join organizations of their own choice and be represented by those organizations in their 1 The statutes administered by PERB include the Educational Employment Relations Act of 1976 (Gov. Code 3500 et seq.), the State Employer-Employee Relations Act of 1978 (Ralph C. Dills Act) (Gov. Code 3512 et seq.), the Higher Education Employer-Employee Relations Act of 1979 (Gov. Code 3540 et seq.), the MMBA, the Los Angeles County Metropolitan Transportation Authority Transit Employer-Employee Relations Act (Pub. Utilities Code et seq.), the Trial Court Employment Protection and Governance Act (Gov. Code et seq.), and the Trial Court Interpreter Employment and Labor Relations Act (Gov. Code et seq.). 3

8 employment relationships with public agencies. (Id.) In 2001, the California Legislature gave PERB exclusive jurisdiction over alleged violations of the MMBA. Specifically, Government Code section 3509, subdivision (b) provides in pertinent part as follows: A complaint alleging any violation of this chapter... shall be processed as an unfair labor practice charge by the board. The initial determination as to whether the charge of an unfair labor practice is justified and, if so, the appropriate remedy necessary to effectuate the purposes of this chapter, shall be a matter within the exclusive jurisdiction of the board. (Gov. Code 3509, subd. (b).) Since this section was enacted, no appellate case has specifically ruled on whether PERB has exclusive initial jurisdiction in the absence of an alleged violation of the MMBA. In the context of local rules, PERB s own brief acknowledges that its regulations and examples of rule violation investigations focus on conduct and not on a question of interpretation of the underlying rule. (PERB s Amicus Curiae Brief, pg. 7 [Noting that Cal. Code Regs., tit. 8, 32604(d) focuses on violations of the MMBA/local rules or failure to participate in good faith, and that in its investigations PERB has analyzed the underlying conduct.... ].) However, in many cases, including the case presently before this Court, local governments do not claim any unlawful labor practice occurred under the MMBA, and PERB has no authority to remedy conduct not expressly or impliedly 4

9 proscribed by its governing statutes. (California Teachers Assoc. v. Livingston Union School Dist. (1990) 219 Cal.App.3d 1503, 1525.) B. COURTS INTERPRET GOVERNING STATUTES AND LOCAL REGULATIONS WITHOUT CEDING JURISDICTION TO PERB. When it comes to interpretation of applicable statutes, charters, and local regulations, as opposed to a review of conduct, courts have frequently exercised jurisdiction. As the City of San Francisco notes in its brief, the question of the appropriate statute of limitations for bringing PERB charges was properly decided by the courts. (Opening Brief, pg. 33 (citing Coachella Valley Mosquito & Vector Control Dist. v. California Public Employment Relations Bd. (2005) 35 Cal.4th 1072).) There are other cases that further demonstrate this point. For example, in San Francisco Fire Fighters Local 798 v. City and County of San Francisco (2006) 38 Cal.4th 653, the union filed a petition for writ of mandate in the Superior Court to compel arbitration without filing a PERB charge. At issue in the case was a City Charter provision, similar to the one at issue in this case, which requires arbitration unless specified exemptions apply. The question before the court was how to interpret one of the exemptions to the arbitration requirement. The Superior Court exercised jurisdiction and denied the writ petition. The Supreme Court eventually affirmed and issued a ruling interpreting the exemption to the arbitration requirement in the City s Charter. 5

10 Similarly, in San Lorenzo Education Association v. Wilson (1982) 32 Cal.3d 841, a group of teachers refused to either join the union or pay a service fee as required by the applicable organizational security agreement. The agreement was adopted in accordance with the Education Employment Relations Act (EERA)(Gov. Code 3540 et seq.), one of the statutes under PERB s jurisdiction. The union obtained judgments in small claims court for the service fees, and the teachers challenged the judgments in Superior Court. Neither the teachers nor the union filed a charge with PERB. The issue before the court was whether civil suits are a proper remedy under Government Code section or whether the sole remedy is to dismiss the teachers from employment. The Superior Court exercised jurisdiction and found the civil suit proper. The Supreme Court eventually affirmed, issuing an opinion interpreting permissible remedies under Section In United Steelworkers of America, Local 8599, AFL-CIO v. Board of Education of the Fontana Unified School District (1984) 162 Cal.App.3d 823, a bus driver was terminated from her employment. The contract between the union and the District established grievance procedures, which included arbitration. The contract was adopted pursuant to Section 3540 of the EERA. The union requested arbitration, but the District refused. It contended that to require arbitration under these circumstances would run afoul of Education Code section 45113, which states that the governing board s determination regarding discipline is conclusive. 6

11 The union filed a writ petition in Superior Court, but filed no charge with PERB. At issue before the court was whether the contract s arbitration clause was permissible under the applicable statutes. The Superior Court exercised jurisdiction and denied the writ. The appellate court affirmed, issuing a decision interpreting the respective roles of Government Code section 3540 and Education Code section What all of these cases have in common is the thrust of the issue presented was interpretation of the applicable statute or local regulation and not the conduct of the parties. In all of the cases, there was no question raised about whether the party was proceeding in good or bad faith. Indeed, the cases raised no doubt that the responding party was not participating at all in the procedure at issue based on the party s belief that it was not required to do so under the applicable statute or local provision. And in each case, the Superior Court exercised jurisdiction and made a ruling interpreting the governing law. This is precisely what the City of San Francisco has attempted to do in the present case. There is no dispute that the respondent union has not participated in the arbitration process. It asserts instead that it is not obligated to do so based on its interpretation of the City Charter. The City does not allege bad faith or any violations of the MMBA. Just as in the cases cited above, the City went to the Superior Court with a writ petition asking the court to interpret the applicable governing law. And just as in 7

12 the above cases, the trial court should have exercised jurisdiction and made a ruling as to whether the Charter is mandatory or permissive. C. COURTS ARE CAPABLE OF PERFORMING STATUTORY INTERPRETATION IN THIS AREA OF THE LAW; PERB S EXPERTISE IS NOT REQUIRED. There is no question that the courts are charged with interpreting statutes and regulations, and that they are fully capable of doing so in the area of labor relations. (See Henning v. Industrial Welfare Commission (1988) 46 Cal.3d 1262, 1283 [ The ultimate interpretation of a statute is an exercise of judicial power. ].) There is nothing about PERB s expertise in administering the MMBA that makes PERB uniquely qualified to issue opinions interpreting the governing statutes and local charter provisions where an MMBA violation is not alleged. This concept has been specifically recognized in other contexts. For example, in Dixon v. Board of Trustees of the Saugus Unified School District (1989) 216 Cal.App.3d 1269, one of the issues before the court was whether PERB had exclusive jurisdiction over a case involving interpretation of an Education Code provision. The appellate court found: PERB provides an administrative remedy for unfair practices and violation of Government Code section [EERA] (Gov. Code, , subd. (i).) Where unfair practices are alleged..., [t]he initial determination as to whether the charges of unfair practices are justified, and, if so, what remedy is necessary to effectuate the purpose of this chapter, shall be a matter within the exclusive jurisdiction of the board. However, PERB does not have exclusive 8

13 jurisdiction where a pure Education Code violation (as opposed to an arguably unfair practice) is alleged. (Id. at 1277 [citations omitted].) (See also United Teachers of Ukiah v. Bd of Education of Ukiah Unified School Dist. (1988) 201 Cal.App.3d 632, [ We find nothing in the case or statutory law which requires that claims which assert only violations of the Education Code be directed to the PERB simply because the defendant contends the EERA may be implicated in the resolution of the claim. To the contrary, we reject appellants implicit contention that defendants may divest the courts of jurisdiction over Education Code violations simply by framing their defense in a fashion that arguably involves the EERA. ].) Similarly here, where the question involves interpretation of the City s charter, but not a violation of the MMBA, the court should have retained jurisdiction. The concept of uniformity does not require a different result. There are already certain employees over which PERB does not retain jurisdiction for MMBA purposes, including a very significant group of public employees peace officers. (Gov. Code 3511.) As such, when an issue involving interpretation of the MMBA arises in the context of a peace officer conflict, there is no dispute that the courts have jurisdiction. (See Claremont Police Officers Assoc. v. City of Claremont (2006) 39 Cal.4th 623 [court assumed jurisdiction to determine whether MMBA meet and confer requirements are triggered by implementation of vehicle stop 9

14 practices study].) The rules for interpreting statutes, including charter provisions, are well established in the courts, and courts are fully capable of making such determinations without risking inconsistent decisions and without relying on any particularized knowledge possessed by PERB about MMBA violations. IV. CONCLUSION PERB s jurisdiction does not extend beyond its statutory authority to administer the MMBA. Where a case rests on a question of interpretation of the relevant statutes or local charter provisions, and not a question of conduct or an alleged violation of the MMBA, PERB does not have exclusive jurisdiction. To the contrary, the courts retain their authority to make the ultimate decision as to a statute s meaning using a well established set of interpretative rules. Nothing in the law requires a different result. For the foregoing reasons, CSAC and the League respectfully urge this Court to reverse the lower court s decision that PERB has initial exclusive jurisdiction over this matter. Date: May, 2007 Respectfully Submitted, Jennifer B. Henning, SBN Counsel for Amici Curiae California State Association of Counties and League of California Cities 10

15 CERTIFICATION OF COMPLIANCE WITH CALIFORNIA RULES OF COURT, RULE 8.204(c)(1) I hereby certify that this brief has been prepared using proportionately double-spaced 13 point Times New Roman typeface. According to the Word Count feature in my Microsoft Word software, this brief contains 2,211 words. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this day of May, 2007 in Sacramento, California. Jennifer B. Henning, SBN Counsel for Amici Curiae California State Association of Counties and League of California Cities 11

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