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International Association of Fire Fighters, Local 188, AFL-CIO v. Public Employment Relations Board

March 18, 2009

INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, LOCAL 188, AFL-CIO, PLAINTIFF AND APPELLANT,
v.
PUBLIC EMPLOYMENT RELATIONS BOARD, DEFENDANT AND RESPONDENT;
CITY OF RICHMOND, REAL PARTY IN INTEREST AND RESPONDENT.



(Contra Costa County Super. Ct. No. N05-0232). Trial Judge: Steven K. Austin.

The opinion of the court was delivered by: McGuiness, P.J.

CERTIFIED FOR PUBLICATION

Faced with a severe financial crisis, the City of Richmond (City) laid off 18 firefighters and consequently reduced the number of firefighters on each work shift. The firefighters‟ union, International Association of Fire Fighters, Local 188, AFL-CIO (Local 188), sought to meet and confer over the decision, but the City claimed the layoff decision was not subject to collective bargaining. Local 188 filed an unfair practices claim with the Public Employment Relations Board (PERB), which dismissed the charges relating to the layoff and shift staffing decision. This appeal arises out of Local 188‟s petition to compel PERB to issue a complaint against the City.

The threshold jurisdictional question on appeal is whether a court may consider a challenge to a PERB decision dismissing an unfair labor practices charge and refusing to issue a complaint under the Meyers-Milias-Brown Act (Gov. Code,*fn1 § 3500 et seq.)

(MMBA or Act). We conclude an aggrieved party may seek a writ of mandate on certain narrow grounds described in this opinion to challenge a PERB decision not to issue an unfair labor practices complaint.

The substantive issue raised on appeal is whether a local government agency‟s decision to lay off firefighters is a mandatory subject of bargaining under the MMBA. Consistent with our Supreme Court‟s decision in Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608 (Vallejo), we conclude a decision to lay off firefighters is not subject to collective bargaining. Accordingly, we shall affirm the judgment of the trial court denying Local 188‟s petition for writ of mandate.

FACTUAL AND PROCEDURAL BACKGROUND

The City is a local public agency subject to the provisions of the MMBA. Local 188 is the exclusive representative of a bargaining unit consisting of the City‟s sworn fire suppression employees.

As of early 2004, the City had seven fire stations. There was a fire engine at each of the stations and a fire truck at two of the stations, although one of the fire trucks was not regularly staffed.*fn2 If a second truck company were needed, the engine at one of the stations would be taken out of service and the engine‟s crew would then operate the second truck. The fire department had a policy that all seven of the engines and one of the trucks were to be fully staffed at all times. Each fire engine was staffed with three personnel. The fire truck likewise had a three-person crew. The department maintained a minimum of 24 fire suppression personnel on duty in the City‟s seven fire stations at all times, composed of three personnel assigned to each of the seven engines plus the three personnel assigned to one of the trucks.

In the 2003-2004 fiscal year, the City was facing a severe financial crisis. In a meeting held October 16, 2003, City officials met with union representatives to discuss a budget proposal that involved laying off 13 firefighters effective December 31, 2003. Combining the effect of the 13 proposed layoffs with the anticipated retirements of six firefighters, there was a "high likelihood" the City would need to close one of its seven fire stations. The City later determined that, based on the actual number of retirements, it was necessary to lay off five additional firefighters, for a total of 18 firefighters to be laid off.

After layoff notices were sent to affected personnel, the City arranged to meet with Local 188 over the negotiable effects of the envisioned layoffs. On November 19, 25, and December 15, 2003, City representatives met with Local 188 to discuss the proposed layoffs as well as other staffing issues. During the course of these discussions, Local 188 identified some measures it claimed would save the City up to $1.2 million, which it claimed would make layoffs of its members unnecessary. The City concluded that Local 188‟s proposals would not be sufficient to offset any of the planned layoffs. Local 188 did not attempt to identify specific impacts of the proposed layoffs, nor did it present any plan concerning the effects of the proposed layoffs.

As of December 2003, the City had abandoned its proposal to permanently close one of the fire stations and instead proposed a new plan that would result in one of the fire stations being taken out of service on a rotating basis. Ultimately, on January 1, 2004, the City proceeded to lay off 18 members of Local 188.*fn3 The City also instituted "rolling closures" among three designated fire stations, also referred to as a "brownout" of the affected station. Shift staffing levels of fire suppression personnel were reduced from 24 to 18 per shift, accomplished by the rolling closure of one engine company and the elimination of the regular staffing of one truck company.

In early January 2004, Local 188 requested a meeting, purportedly to discuss some of the effects of the layoff. At the meeting, held January 5, 2004, Local 188 presented a number of proposals dealing with severance pay, compensation for laid-off employees, and restoration of sick leave for employees upon reinstatement. None of the proposals concerned firefighter safety and workload.

Local 188 filed an unfair labor practice charge against the City with PERB on January 12, 2004. Among other things, Local 188 alleged the City had violated the MMBA by failing to meet and confer in good faith over the decision to reduce staffing levels, and by failing to comply with Local 188‟s repeated requests for detailed information about the City‟s financial condition. In its statement accompanying the charge, Local 188 stated the fire chief had "confirmed in public statements after the layoffs that the community is less safe as a result of the layoffs." Local 188 also asserted working conditions were "far less safe" for the remaining firefighters, who had "to perform substantially more dangerous work than they did before" because there were "no longer enough staffed engines in the City of Richmond to provide the teamwork necessary for the remaining fire fighters to perform fire suppression duties without significantly increasing risks to their lives and safety." Local 188 requested that PERB seek injunctive relief requiring the City to reinstate the previous shift staffing levels as well as the engine and truck company emergency response protocols. Local 188 further requested the City make no changes in shift staffing levels and response protocols unless and until the City satisfied its obligation to meet and confer in good faith and attempt to reach agreement over the proposed staffing level changes.

The PERB regional office responded to Local 188‟s unfair labor practice charge in a partial warning letter dated February 11, 2004. The letter indicated the allegations failed to state a prima facie case for relief, explaining that "the decision to lay off employees is not subject to bargaining." However, the letter also explained that "Although the decision to lay off employees is nonnegotiable, the effects of that decision are matters within the scope of representation." Examples of such effects were described as "(1) recall and reemployment rights; (2) bumping rights; (3) severance pay; (4) distribution of work among remaining employees; and (5) retraining of laid off employees." The letter responded to allegations the layoff plan constituted a change in "staffing levels or shift assignments," stating that "staffing levels is simply another way of describing the number of employees on the City‟s payroll."

Local 188 filed a first amended charge against the City on February 17, 2004. In contrast to the original claim, which contained a brief discussion of the alleged workload and safety consequences of the staffing reduction, the amended claim contained a much more detailed discussion of the purported safety consequences of the layoffs. Among other things, Local 188 claimed the reduction in shift staffing levels would reduce the number of engines and trucks that were available to respond to a fire, thereby causing a significant increase in the risk of injury for members of the remaining engine companies. Further, Local 188 claimed the deactivation of a regularly staffed fire truck would cause delays in responding to a fire, resulting in a "greatly increased risk that the structure [would] collapse with fire fighters and victims inside." Notably, however, in a declaration submitted to PERB on January 23, 2004, Local 188‟s president admitted the union had "not made any proposals to the City regarding firefighter workload and safety issues related to the new staffing level and emergency response protocols" the City had implemented, purportedly because the decision was presented to Local 188 as a "fait accompli."

PERB‟s Office of General Counsel issued a complaint on behalf of Local 188 and against the City on April 29, 2004, limited to the issue of whether the City had committed an unfair practice in violation of the MMBA by its delay in providing relevant financial information. Also on April 29, 2004, PERB‟s General Counsel issued a partial dismissal letter dismissing the allegation that the City had failed to meet and confer in good faith over the layoff decision or the effects of that decision.

In the letter dismissing the charges related to the layoff decision, PERB‟s General Counsel stated that Local 188‟s amended charge did not contain significantly different facts but instead focused primarily on legal arguments. The letter reiterated the conclusions contained in the earlier partial warning letter.

Local 188 appealed the partial dismissal, arguing its unfair practice charge adequately alleged that the reduction in staffing adversely affected the workload and safety of the remaining firefighters and that the Supreme Court‟s opinion in Vallejo, supra, "squarely holds that a [public entity] is required to meet and confer over a decision to lay off employees when this decision affects the workload and safety of the remaining employees."

On December 13, 2004, a panel of three PERB board members issued a decision upholding the partial dismissal of Local 188‟s unfair practices charge. The PERB panel framed the issue as "whether a decision to layoff [sic] employees is within the scope of representation under the MMBA." The panel concluded it was not and disagreed with Local 188‟s interpretation of Vallejo. The decision stated that Vallejo supported PERB‟s position that layoffs are not subject to collective bargaining "by its plain language." The panel concluded the passage cited by Local 188 merely held the effects of a layoff decision, such as workload and safety concerns, are negotiable. The panel also concluded Local 188 had repeatedly requested to bargain over the layoff decision itself instead of the effects of that decision, such that the City was never on notice of Local 188‟s request to bargain over the effects of the layoff decision. As a consequence, PERB held Local 188 had waived its right to bargain over the effects of the decision.

Local 188 filed a petition for writ of mandate in this court on January 11, 2005, in case number A108875. Following this court‟s receipt of opposition to the petition from PERB and the City, we denied the petition "without prejudice to its being refiled in the Contra Costa County Superior Court."

Local 188 thereafter filed a petition for writ of mandate in the Contra Costa County Superior Court. Local 188 alleged that PERB had misinterpreted and misapplied the Supreme Court‟s decision in Vallejo, and it sought a writ of mandate directing PERB to issue a complaint against the City alleging it had violated the MMBA by unilaterally implementing changes in firefighter shift staffing levels. PERB and the City opposed the petition, contending (1) the trial court lacked jurisdiction to grant the petition because the MMBA prohibits judicial review of a PERB decision not to issue a complaint, and (2) Local 188‟s unfair practice charge failed to state a prima facie violation of the MMBA in light of ...


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