PERB: OPERATION, JURISDICTION, AUTHORITY; SCOPE OF PERB JURISDICTION – Concurrent or Conflicting Jurisdiction with Other Agencies or Courts; Interpretation or Enforcement of Other Statutes
Single Topic for Decision 2388M
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102.02000 – Concurrent or Conflicting Jurisdiction with Other Agencies or Courts; Interpretation or Enforcement of Other Statutes
We construe MMBA section 3509(e) to reserve to the courts questions arising in actions involving interest arbitration, as governed by Title 9 (commencing with Section 1280) of Part 3 of the Code of Civil Procedure, when the action involves an employee organization that represents firefighters, as defined in Section 3251, MMBA section 3509(e) denies PERB jurisdiction over “actions” to enforce an existing interest arbitration procedure, including questions regarding the extent or scope of the parties’ arbitration obligations. The adoption of rules and regulations concerning either interest arbitration or mediation or both, falls squarely within the public agency’s duty, established by section 3507, to consult in good faith. Absent a factual predicate implicating MMBA section 3509(e), viz., an “action” pursuant to Code of Civil Procedure 1280 et seq., PERB retains exclusive initial jurisdiction to construe and enforce a public agency’s duty under MMBA section 3507 to consult in good faith, even where, as here, the local rule proposed for adoption or modification by the public agency concerns interest arbitration and even where, as here, the recognized employee organization seeking to enforce its MMBA consultation rights represents firefighters. Duties imposed by the MMBA on charter cities to meet and confer with employee organizations do not conflict with the exercise by charter cities of their rights under California’s Constitution to propose charter amendments, and accordingly that charter cities must comply with their MMBA duties as to matters subject thereto even where a charter amendment may be the ultimate form of the charter city’s action. Regarding PERB’s authority and competence to adjudicate in the first instance an issue implicating the extent of its own jurisdiction vis-à-vis that of a charter city, the appellate court observed: “We agree with the trial court that the issues presented in this case–especially the extent to which local regulation of employment matters as prescribed by the [City and County of San Francisco] charter might be superseded by matters of statewide concern as set out in the EERA–is a matter properly decided, in the first instance, by PERB.” (Local 21, International Federation of Professional and Technical Engineers, AFL-CIO v. Thornton C. Bunch, Jr. (1995) 40 Cal.App.4th 670, 676.) The extent to which local regulation of employment matters as prescribed by the charter might be superseded by matters of statewide concern as set out in the MMBA is a matter properly decided in the first instance, by PERB. Exercising this authority, we decide that our precedents compel the result we reach, viz., that in addition to cease and desist orders, affirmative relief is also appropriate, including an order directed to the City itself to rescind the City’s action of July 18, 2011, referring to voters of a measure to repeal Article V of the Charter, coupled with an order directed to the City itself to consult in good faith upon request. We do not believe our remedial authority extends to ordering the results of an effective municipal election to be overturned. Such remedy lies with the courts.