In International Association of Fire Fighters, Local 188, AFL-CIO v. Public Employment Relations Board, (— Cal.Rptr.3d —, Cal.App. 1 Dist., March 18, 2009), a California Court of Appeal considered (1) whether the court may consider a challenge to a Public Employment Relations Board (“PERB”) decision which dismisses an unfair labor practices charge and refuses to issue a complaint under the Meyers-Milias-Brown Act (“MMBA”); and (2) “whether a local government agency’s decision to lay off firefighters is a mandatory subject of bargaining under the MMBA.” The Court of Appeal held, as to the former issue, that a party aggrieved by a PERB decision may seek a writ of mandate on certain narrow grounds to challenge a decision not to issue an unfair labor practice complaint. As to the latter issue, the court held that a decision to lay off firefighters is not subject to collective bargaining.
Due to a severe financial crisis, the City of Richmond decided to lay off numerous firefighters, a move which reduced the number of firefighters working each shift. Before the layoffs, Richmond had seven fire stations, each with an engine company. Two of the stations had a fire truck, but only one was regularly staffed. If the second truck was needed, an engine at another station would be placed out of service and that engine’s crew would then staff the second truck. The fire department’s policy was to staff all engines and one truck with three personnel each, requiring a minimum of 24 personnel on duty at the seven stations at all times.
City met with Local 188, the exclusive bargaining representative for Richmond’s sworn fire suppression employees, to discuss the layoffs and other staffing issues. Richmond ultimately decided to lay-off 18 members and instituted a “rolling closure” among three fire stations, resulting in the reduction of fire suppression personnel from 24 to 18 per shift.
Local 188 filed an unfair labor practice charge with PERB alleging Richmond had violated the MMBA by failing to meet and confer in good faith with Local 188 over Richmond’s decision to reduce staffing levels and by failing to comply with detailed information requests regarding Richmond’s financial condition. Local 188 also asserted that the community and the remaining firefighters are less safe because of the lay-offs. PERB informed Local 188 that the decision to lay-off employees is not subject to bargaining, but that the effects of the decision are matters within the scope of representation.
Local 188 filed an amended charge against Richmond, which contained a more detailed discussion of the alleged safety consequences that may arise because of the lay-offs. PERB’s general counsel dismissed the charges relating to the decision to lay-off the firefighters, a decision that was upheld by the PERB Board.
Local 188 filed a petition for writ of mandate in the Court of Appeal, but the court denied its petition. Local 188 then filed a petition for writ of mandate in the Contra Costa Superior Court, but that petition was also denied. Local 188 appealed the trial court’s decision to the Court of Appeal.
The initial issue before the Court of Appeal was whether a decision by PERB not to issue an unfair practices complaint is subject to judicial review. The court found that a PERB decision on this issue is subject to judicial review on limited grounds.
The MMBA, which established collective bargaining rights for local government employees in California, “requires local public agencies to meet and confer with recognized employee organizations over all matters within the scope of representation.” PERB has exclusive jurisdiction where there is a charge that an employee organization or local government agency has violated the MMBA. After an unfair practice charge is filed, a PERB agent decides whether there is sufficient evidence to establish a prima facie case. If there is insufficient evidence, the agent must refuse, in whole or in part, to issue a complaint. The agent’s refusal to issue a complaint constitutes a dismissal of the charge. A dismissal may be appealed to the PERB board.
The Legislature amended the MMBA in 2002 to allow a challenge to a final PERB decision by petition for extraordinary relief to the Court of Appeal. Although the Legislature, at Government Code section 3590.5 subdivision (a), allowed for petitions in unfair practice cases, it specifically excluded “decision[s] of the board not to issue a complaint in such a case.”
Local 188 agreed with PERB that a decision which upholds a refusal to issue a complaint is not reviewable under section 3509.5. The question before the Court of Appeal was “whether the express exclusion of such decisions from the scope of judicial review in section 3509.5 entirely deprives the courts of jurisdiction to consider a challenge to such decisions in any context.” The court found an exception previously identified for Agricultural Labor Relations Board decisions is also applicable to PERB decisions. Under this exception a “court’s authority to review a decision not to issue a complaint is limited to a determination of whether” that decision either (1) “violates a constitutional right;” (2) “exceeds a specific grant of authority;” or (3) “is based on an erroneous construction of an applicable statute.” The Court of Appeal instructed, however, that any judicial challenge to a PERB decision to not issue a complaint must be filed with the trial court in the county where the controversy arose, not in the Court of Appeal.
Given its conclusion that PERB’s decision not to issue a complaint may be subject to judicial review, the court went on to examine the merits of Local 188’s challenge. Local 188 never claimed that PERB’s decision not to issue a complaint violated a constitutional right or exceeded a specific grant of authority. The only ground left for judicial review was “whether PERB’s decision [was] based upon the erroneous construction of an applicable statute. Here, the applicable statute is section 3509, subdivision (b), “which requires PERB to ‘apply and interpret unfair labor practices consistent with existing judicial interpretations of [the MMBA].’”
Local 188 argued that under the holding of Fire Fighters Union v. City of Vallejo, (1974) 12 Cal.3d 608, changes in the staffing levels of firefighters, which are primarily concerned with employee safety and workload, are mandatory subjects of collective bargaining. PERB contended that under Vallejo, collective bargaining applies to the effects of lay-off decision, but not the decision to institute a lay off and that safety and workload concerns “fall into the category of negotiable effects of a layoff.”
It is well established that a public agency’s decision to lay-off employees is not negotiable. However, “an employer does have an obligation to bargain over the effects of the nonnegotiable layoff decision on both departing and remaining employees.” Some “effects” that are subject to bargaining include pensions, severance pay, and seniority.
In Vallejo, the California Supreme Court concluded that bargaining was only mandated to the extent that the proposed personnel reduction policy “impacted the workload and safety of the remaining workers.” Local 188 essentially argued that PERB is “required to issue a complaint in any firefighter layoff case in which it is alleged that the layoffs affect the workload and safety of the remaining firefighters.” The Court of Appeal disagreed finding that, as a practical matter, if it were to accept Local 188’s argument, a layoff decision “would almost always be subject to collective bargaining.”
The court also noted that Local 188 failed to acknowledge the distinction between shift staffing levels (the number of firefighters on duty at any one time) and equipment staffing levels (the number of personnel assigned to each engine or piece of equipment). The court opined that the “distinction is important because a change in the number of personnel assigned to each engine or truck presumably has a much greater impact on workload and safety than the number of firefighters on duty throughout the City.”
The Court concluded that PERB’s interpretation of the holding in Vallejo was correct in that the decision to lay off firefighters is not subject to negotiation but the effects of the lay off decision, “including the workload and safety of the remaining employees, are properly the subject of collective bargaining.” Local 188’s attempt to recast the decision to lay off firefighters as a reduction in shift staffing did not transform the decision into a proper subject for collective bargaining.
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