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International Association of Fire Fighters, Local 188, Afl-Cio v. Public Employment Relations Board

January 24, 2011

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

The opinion of the court was delivered by: Kennard, Acting C. J.

Ct.App. 1/3 A114959

Facing a budget crisis, the City of Richmond decided to lay off 18 of its firefighter employees. The firefighters' union tried to negotiate with the city to avert the layoffs, but the city refused to bargain over its layoff decision. The union turned to the Public Employment Relations Board (PERB), the state agency charged with enforcing state labor laws affecting local government employees. PERB would not issue a complaint, however, because it concluded that the city's refusal to bargain had not violated state law. The union then brought an action in superior court, but that court agreed with PERB that no unfair labor practice had occurred. On the union's appeal, the Court of Appeal affirmed the superior court's judgment.

Here, we address two issues: (1) If, after receiving an unfair labor practice charge, PERB decides not to issue a complaint, is that decision ever subject to judicial review? (2) Is a city's decision to lay off firefighters for fiscal reasons a matter that is subject to collective bargaining?

On the first question, we agree with the Court of Appeal that although PERB's refusal to issue a complaint is generally not subject to judicial review, this general rule has narrow exceptions. One of these exception applies when, as the union alleges here, PERB's refusal is based on a clearly erroneous statutory construction.

On the second question, we conclude, as did the Court of Appeal, that when a city, faced with a budget deficit, decides that some firefighters must be laid off as a cost-saving measure, the city is not required to meet and confer with the firefighters' authorized employee representative before making that initial decision. In this situation, the city's duty to bargain with the employee representative extends only to the implementation and effects of the layoff decision, including the number and identity of the employees to be laid off, and the timing of the layoffs.

I

To reduce labor costs in response to a budget shortfall, the City of Richmond in late 2003 decided to lay off 18 of its 90 firefighters, effective December 31 of that year. The city sent layoff notices to the firefighters whose positions were being eliminated. During November and December 2003, the city on three occasions met with its firefighters' authorized representative, International Association of Fire Fighters, Local 188, AFL-CIO, to discuss the effects of the layoffs on the remaining firefighters. Local 188 sought to avert the layoffs by arguing that other cost-saving measures were available that would make the layoffs unnecessary, but the city rejected that argument.

In January 2004, Local 188 filed an unfair labor practice charge with PERB, alleging that the city had violated California's Meyers-Milias-Brown Act (Gov. Code, § 3500 et seq.; MMBA) by, among other things, failing to meet and confer with it over the city's layoff decision. PERB's agent, Regional Attorney Kristin L. Rosi, declined to issue a complaint, explaining her reasons in a "partial warning letter" to Local 188. The letter stated that Local 188's unfair practice allegations failed to state a prima facie case for relief because a decision to lay off employees, including firefighters, is not subject to collective bargaining and because, although the effects of a layoff decision are subject to bargaining, Local 188 had made no proposals concerning the effects of the city's decision to lay off firefighters and the city had not declined to bargain concerning them.

Local 188 filed an amended unfair practice claim that focused on the purported safety consequences of the layoffs, alleging that reducing the number of city-employed firefighters meant that at any given time fewer fire engines and fire trucks could be deployed for fire suppression work, and this in turn would increase the risk of injury to the remaining firefighters. The union admitted that it had made no specific proposals to the city regarding firefighter workload and safety issues under the newly reduced staffing levels.

In April 2004, PERB Regional Attorney Rosi declined to issue a complaint on behalf of Local 188 on the charge that the city had committed an unfair labor practice by failing to meet and confer over the layoff decision or its effects. Local 188 filed an administrative appeal of that ruling.

A panel of three PERB board members issued a decision affirming Regional Attorney Rosi's ruling. The PERB panel concluded that a city's decision to lay off some of its employees is not subject to collective bargaining and that Local 188, by repeatedly seeking to bargain over the layoff decision itself rather than its effects, had waived its rights to bargain over those effects.

In January 2005, Local 188 petitioned the Court of Appeal for a writ of mandate. The Court of Appeal denied the petition " 'without prejudice to its being refiled in the Contra Costa County Superior Court.' " Local 188 then filed a petition for writ of mandate in superior court, challenging PERB's conclusion that a city's decision to lay off firefighters is not subject to collective bargaining even though the effect of the decision is to increase the dangers faced by the remaining firefighters while engaged in fire suppression.

After receiving opposition from PERB, and from the city, and holding a hearing, the superior court denied Local 188's mandate petition. The superior court concluded that it had jurisdiction to review PERB's decision not to issue a complaint on Local 188's unfair labor practice charge, but the court agreed with PERB that a city's layoff decision is not within the scope of representation under the MMBA. Local 188 appealed the superior court's judgment denying the mandate petition.

The Court of Appeal affirmed the trial court's judgment denying Local 188's writ petition. Regarding the availability of judicial review of a PERB decision not to issue an unfair labor practice complaint, the Court of Appeal agreed with PERB and the city that such decisions generally are not subject to judicial review. It also concluded, however, that this general rule is subject to three narrow exceptions under which judicial review is available, by petitioning the superior court for a writ of mandate, to determine whether PERB's decision not to issue a complaint (1) violates a constitutional right, (2) exceeds a specific grant of authority, or (3) is based on an erroneous statutory construction. In reaching that conclusion, the Court of Appeal relied heavily on this court's decision in Belridge Farms v. Agricultural Labor Relations Bd. (1978) 21 Cal.3d 551 (Belridge Farms). That decision construed the judicial review provisions of the Alatorre-Zenovich-Dunlap-Berman Agricultural Labor Relations Act of 1975 (Lab. Code, § 1140 et seq.; ALRA).

Regarding whether a city's decision to lay off firefighters for fiscal reasons is subject to collective bargaining, the Court of Appeal concluded that this issue was subject to judicial review to determine whether PERB's decision not to issue an unfair labor practice complaint was based on an erroneous statutory construction. On the merits, the Court of Appeal concluded that PERB had not erred in its construction of Government Code section 3504, the MMBA provision defining the scope of a local public entity's duty to meet and confer with employee representatives. In reaching that conclusion, the Court of Appeal resolved a dispute between the parties regarding the meaning and effect of our decision in Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608 (Vallejo). The Court of Appeal read Vallejo as establishing or reaffirming a rule that under the MMBA, a "decision to lay off firefighters is not subject to negotiation," although "the effects of that decision, including the workload and safety of the remaining employees, are properly the subject of collective bargaining."

II

When an employee or employee representative complains to PERB that a local government employer has refused to meet and confer over a mandatory subject of bargaining, PERB processes the complaint as an unfair labor practice charge. (Gov. Code, § 3509, subd. (b).) The charge is assigned for processing to a "Board agent." (Cal. Code Regs., tit. 8, § 32620, subd. (a).) If the agent "concludes that the charge or the evidence is insufficient to establish a prima facie case," the agent refuses to issue a complaint, an action that constitutes a dismissal of the charge. (Id., § 32630.) The complaining party may appeal such a dismissal to PERB's five-member board. (Id., § 32635, subd. (a).)

The MMBA provides for judicial review of PERB decisions in subdivision (a) of Government Code section 3509.5, which states: "Any charging party, respondent, or intervenor aggrieved by a final decision or order of the board in an unfair practice case, except a decision of the board not to issue a complaint in such a case, . . . may petition for a writ of extraordinary relief from that decision or order."*fn1 (Italics added.) Subdivision (b) of that section states that the "petition for a writ of extraordinary relief shall be filed in the district court of appeal having jurisdiction over the county where the events giving rise to the decision or order occurred."

The Court of Appeal here agreed with PERB and the city that the plain language of section 3509.5 establishes that a PERB decision not to issue a complaint is not reviewable under that statute. But the Court of Appeal did not agree that the Legislature, through this provision, has precluded superior courts from exercising traditional mandate jurisdiction to consider challenges to such decisions.

The Court of Appeal observed that many other labor relations statutes, including the federal National Labor Relations Act (29 U.S.C. § 151 et seq.; NLRA) and the state ALRA, contain provisions that are similar to section 3509.5 in that they specify a procedural mechanism for judicial review of agency decisions but exclude from the decisions reviewable in that manner a decision not to issue an unfair labor practice complaint. Because both the MMBA and the ALRA were patterned after the federal NLRA, California courts seeking guidance for interpreting these state labor relations laws have consulted decisions interpreting parallel provisions of the NLRA. (See Vallejo, supra, 12 Cal.3d 608, 616-617; City of El Cajon v. El Cajon Police Officers' Assn. (1996) 49 Cal.App.4th 64, 72, fn. 3.)

In Belridge Farms, supra, 21 Cal.3d 551, this court, after considering decisions under the federal NLRA, held that a refusal to issue a complaint under the state ALRA is judicially reviewable only in limited circumstances. (Belridge Farms, at p. 557.) Because the ALRA was derived from the NLRA and contains a judicial review provision (Lab. Code, § 1160.8) that is, with one exception not relevant here, "identical" (Belridge Farms, at p. 556) to the NLRA's judicial review provision (29 U.S.C. § 160(f)), this court in Belridge Farms considered federal court decisions under the NLRA. Federal courts have held that a refusal to issue a complaint under the NLRA is generally not judicially reviewable, but also that federal courts will exercise equitable powers to review such refusals "when the complaining party raises a colorable claim that the decision violates [a] constitutional right [citations] or exceeds a specific grant of authority [citation]" or is "based on an erroneous construction of an applicable statute." (Belridge Farms, supra, at pp. 556-557; see Annot. (1984) 69 A.L.R.Fed. 870 [collecting NLRA cases].) This court concluded that our state Legislature "intended to adopt the federal rule limiting review" to these situations. (Belridge Farms, at p. 557.)

As PERB and the city strenuously insist, and as the Court of Appeal acknowledged, the MMBA's judicial review provision uses language that differs from the language in the judicial review provisions of the federal NLRA and the state ALRA. Unlike the MMBA, neither the NLRA nor the ALRA expressly excludes from its judicial review provision an agency decision not to issue a complaint. Instead, those federal and state labor relations laws both limit the judicial review provision to final decisions of the administrative agency's governing board. (29 U.S.C. § 160(f); Lab. Code, § 1160.8.) Under those laws, the agency's general counsel has authority to refuse to issue a complaint, and such a refusal is not appealable to the agency's governing board. (29 U.S.C. § 153(d); Lab. Code, § 1149.) Because a refusal to issue a complaint is never a final decision of the governing board, it does not fall within the judicial review provisions of the NLRA and the ALRA. (Belridge Farms, supra, 21 Cal.3d 551, 556-557; see Associated Builders, etc. v. Irving (4th Cir. 1979) 610 F.2d 1221, 1224-1226.)

We agree with the Court of Appeal, however, that the difference in wording between, on the one hand, the judicial review provisions of the federal NLRA and the state ALRA and, on the other hand, the judicial review provision of California's MMBA, is not significant on the issue we consider here. The MMBA's judicial review provision is worded differently because under the MMBA the governing board, and not the agency's general counsel, has final agency authority to decide whether to issue an unfair labor practice complaint. (Cal. Code Regs., tit. 8, § 32635.) Had the Legislature made the MMBA's judicial review provision similar in language to the judicial review provisions of the federal NLRA and the state ALRA by permitting judicial review of any final decision of the board, therefore, all board decisions refusing to issue complaints would have been subject to full judicial review. To ensure that a decision by PERB under the MMBA refusing to issue a complaint, like similar decisions under the NLRA and the ALRA, would not routinely be subjected to full judicial review, the state Legislature needed to use language making that intent clear, as it did in section 3509.5, subdivision (a). That provision does not, however, expressly bar superior courts from exercising their traditional mandate jurisdiction to determine whether PERB's refusal to issue a complaint is invalid on one or more of the narrow grounds under which similar decisions may be challenged under the NLRA and the ALRA, as recognized by this court in Belridge Farms, supra, 21 Cal.3d 551, 556-557.

Limiting judicial review of an agency decision not to issue an unfair labor practice to the three grounds articulated in Belridge Farms, supra, 21 Cal.3d 551, strikes an appropriate balance between the Legislature's interest in giving such agencies broad discretionary authority and the courts' obligation to discharge their constitutional powers and responsibilities. The first of these grounds -- that the agency decision violates a constitutional right -- merely respects and protects the state Constitution's hierarchical authority over statutory law, while the second ground -- that the agency has exceeded its statutory powers -- is necessary to ensure that administrative agencies do not purport to exercise powers beyond those actually delegated to them by the Legislature. The third ground -- that the agency action is based on an erroneous statutory construction -- allows courts to correct a clearly erroneous construction of the MMBA by PERB when that erroneous construction ...


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