When the Legislature amended the Meyers-Milias-Brown Act (MMBA) in 2001, it gave PERB jurisdiction over the statute, but not over certain agencies, and not over “persons who are peace officers as defined in Section 830.1 of the Penal Code.” (Gov. Code Section 3511, emphasis added.)
In the more than 14 years since then, however, one lingering question has been whether Section 3511 precluded PERB from exercising jurisdiction over charges filed by or against labor unions representing units comprised of both Section 830.1 peace officers and either persons defined as “peace officers” under different sections of the Penal Code, such as 830.5, or civilian employees.
In 2013, PERB heard oral argument in Lompoc Peace Officers Association and City of Lompoc. In that case, which involved a mixed unit comprised of Section 830.1 peace officers and civilian employees, the Administrative Law Judge found that the City had imposed a wage reduction not reasonably encompassed within its last, best and final offer. He ordered that the City make the civilian employees whole, but excluded the peace officers from that remedy. Both the City and the Association appealed, and PERB granted oral argument on the issue of whether its remedial authority extended to Section 830.1 peace officers. PERB, however, never ruled on that issue because the parties settled, and PERB granted the parties’ request to withdraw their appeals.
PERB, however, has now spoken. In County of Santa Clara (2015), PERB clearly and unequivocally ruled that its authority includes jurisdiction over unfair practice charges filed by “employee organizations representing or seeking to represent units including persons who are peace officers.”
In Santa Clara, a dispute arose between Santa Clara County and its Correctional Peace Officers Association over a tuition reimbursement program. The Association, which represents a unit consisting of both Section 830.1 peace officers as well as non-Section 830.1 peace officers, claimed that the County had unilaterally changed the status quo of providing tuition reimbursement to members as authorized by the expired MOU and established past practice. The MOU provision on tuition reimbursement established a yearly amount to be available to the unit for each year of the MOU, with any unused amounts rolled-over to the next year. Once the MOU expired, however, any unused amounts were to revert to the County. Based on the clear and unambiguous language of the MOU, PERB’s Office of the General Counsel dismissed the unfair practice charge. The Association appealed, and the Board reversed the dismissal and ordered the issuance of a complaint.
Although neither party raised a jurisdictional argument, PERB addressed the issue at the outset of its analysis. In support of its claim that it had jurisdiction, PERB referred to two other cases in which it asserted jurisdiction over a mixed unit comprised of both civilian employees and “peace officers”: County of Calaveras (2012) and County of Yolo (2013). It is unclear, however, why PERB relied on those cases because neither case involved Section 830.1 peace officers. Instead, those cases dealt with persons who were peace officers as defined by Penal Code section 830.5, and thus, clearly within PERB’s jurisdiction.
As PERB explained, it never questioned its authority to entertain unfair practice charges filed by “exclusive representatives” of mixed units of peace officers and non-peace officers. Reading the MMBA’s statutory provisions together, the Board noted that Section 3511 “precludes jurisdiction only with respect to charges brought by peace officers, not employee organizations.” As support for its position, the Board cited other provisions in the MMBA which differentiated between natural persons and employee organizations or other entities. It noted that if the Legislature intended to prohibit PERB from investigating and remedying charges filed by employee organizations, it would have excluded both peace officers and entities that represent peace officers from PERB’s authority. Thus, the Board stated:
“[W]e make explicit PERB’s authority to hear charges… that are brought by employee organizations, including employee organizations representing or seeking to represent units including persons who are peace officers.”
After addressing the jurisdictional issue, the Board moved on to the substance of the charge. On the issue of whether the County’s conduct (i.e., the cessation of its tuition reimbursement program during ongoing negotiations for a successor MOU) constituted an unlawful unilateral change in policy, the Board noted that “affirmative defenses not raised at the [pleading] stage cannot provide the basis for dismissal, even if the pertinent facts are undisputed.” The Board concluded that because the County did not assert “waiver” or “consent by agreement” as an affirmative defense in its response to the unfair practice charge, PERB could not consider the defense. As the Board explained, while PERB regulations require that its agents assist the charging party to state a charge, they do not require that its agent consider affirmative defenses not raised by the respondent.
In support of that holding, the Board cited to Metropolitan Water District of Southern California (2009) (p. 4, fn. 4). But in Metropolitan, it does not appear that PERB required the Respondent to assert waiver. Rather, the Board determined the “charge failed to establish that the District had a duty to bargain” because the undisputed facts sufficiently established waiver. The Board’s decision in County of Santa Clara, however, now seems to hold that even if the “facts” are clear on their face, as evidenced by the clear and unambiguous language in the MOU, PERB will not assume an affirmative defense if the respondent fails to raise it.
The Board’s decision in County of Santa Clara raises two interesting points. First, this decision makes clear, once and for all, that PERB will exercise jurisdiction over bargaining units comprised of both Section 830.1 peace officers and others. But it goes further by holding that the exclusion in Government Code section 3511 refers solely to “persons” and not “employee organizations.” Thus, this case suggests that PERB would assert jurisdiction in an unfair practice charge filed by an employee organization comprised solely of section 830.1 peace officers. Public agencies subject to the MMBA may find themselves facing an increased number of unfair practice charges as a result.
Second, when responding to unfair practice charges, public employers should make sure to assert any and all potential affirmative defenses. Do not assume that PERB will automatically dismiss a charge as untimely or without merit simply because the undisputed facts warrant that conclusion. In situations in which affirmative defenses apply, affirmative defenses will not be assumed if they are not raised in the response/position statement.