Trial Court: Santa Clara County Superior Court Superior Court No. CV133786 Trial Judge: Hon. William J. Elfving (Santa Clara County Super. Ct. No. CV133786)
The opinion of the court was delivered by: Bamattre-manoukian, J.
CERTIFIED FOR PUBLICATION
(Santa Clara County Super. Ct. No. CV133786)
These appeals arise from a labor dispute between the City of San Jose (City) and the International Association of Firefighters, Local 230 (Union), which represents the firefighters employed by the City. After the Firefighters Procedural Bill of Rights Act (Gov. Code, §§ 3250-3262; FFBOR)*fn1 became effective in 2008, the Union requested that the City meet and confer over the implementation of the FFBOR's new procedures for administrative appeals of firefighter discipline. The City refused to meet and confer on the ground that, as a charter city, it was not obligated to implement the FFBOR.
The Union then filed a petition for a writ of mandate and to compel arbitration of the dispute regarding the City's obligation to meet and confer over the implementation of the FFBOR. The City opposed the petition and filed a motion for judgment on the pleadings, in which it argued that under the home rule provisions of the California Constitution, article XI, section 5, it was not required to implement the FFBOR's procedures for administrative appeals in firefighter disciplinary proceedings because the FFBOR's procedures conflicted with the City's existing procedures.
The trial court denied the Union's petition. The court determined that the Union's petition was based upon the City's refusal to meet and confer regarding the implementation of the FFBOR, which might constitute a violation of the Meyers-Milias-Brown Act (§§ 3500 et seq.; MMBA), and therefore the Public Employment Relations Board (PERB) had exclusive jurisdiction over the dispute. Alternatively, the trial court denied the petition on the grounds that arbitration could not be compelled under the parties' collective bargaining agreement because the Union had failed to meet its burden to show that the parties had reached an impasse after meeting and conferring in good faith, and, in any event, the petition was moot since the memorandum of agreement had expired.
In its first appeal (H035065), the Union contends that the trial court erred in denying its petition for a writ of mandate and to compel arbitration because the court has jurisdiction in this matter. For reasons that we will explain, we determine that the Union's petition is not moot and PERB has exclusive initial jurisdiction because the petition alleges an unfair labor practice within the meaning of section 3509 of the MMBA: City's refusal to meet and confer regarding the implementation of the FFBOR. (City of San Jose v. Operating Engineers Local Union No. 3 (2010) 49 Cal.4th 597, 604 (Operating Engineers).) We will therefore affirm the judgment.
In its second appeal (H035425)*fn2 the Union seeks review of the postjudgment order awarding attorney's fees to the City in the event the Union prevails in its first appeal and the judgment is reversed on the merits. Since we have affirmed the judgment, we will also affirm the postjudgment order awarding attorney's fees.
The City has filed a cross-appeal in the Union's first appeal (H035065). In the proceedings below, the trial court denied the City's motion for judgment on the pleadings, finding that the Union had sufficiently pleaded a petition to compel arbitration and a claim for declaratory relief. The City has appealed that order on the ground that, as a matter of law, under the home rule provisions of the California Constitution (art. XI, § 5) the City is not obligated to implement the FFBOR because it is a charter city. As we will further explain, the City's motion for judgment on the pleadings was properly denied because, under the California Supreme Court's decisions in Baggett v. Gates (1982) 32 Cal.3d 128 (Baggett) and County of Riverside v. Superior Court (2003) 30 Cal.4th 278 (County of Riverside), the FFBOR is a procedural statute that does not violate the home rule provisions of the California Constitution and therefore the FFBOR applies to the City.
To provide context for our summary of the facts, the procedural background, and the parties' contentions on appeal, we will begin with a brief overview of two statutes, the MMBA and the FFBOR, and one state agency, PERB.
A. The Meyer-Milias-Brown Act (MMBA)
"In 1961, the Legislature enacted the George Brown Act (Stats. 1961, ch. 1964, pp. 4141-4143), which for the first time recognized the rights of state and local employees to organize and to have their representatives meet and confer with their public agency employers over wages and working conditions. In 1968, the Legislature went a step further by enacting the MMBA (Stats. 1968, ch. 1390, pp. 2724-2729), which 'authorized labor and management representatives not only to confer but to enter into written agreements for presentation to the governing body of a municipal government or other local agency.' [Citations.]" (Coachella Valley Mosquito & Vector Control Dist. v. California Public Employment Relations Bd. (2005) 35 Cal.4th 1072, 1083 (Coachella Valley).)
The stated purpose of the MMBA "is to provide 'a reasonable method of resolving disputes regarding wages, hours, and other terms and conditions of employment . . . . ([§] 3500.)" (Santa Clara County Counsel Attys. Assn. v. Woodside (1994) 7 Cal.4th 525, 536.) To achieve this legislative purpose, "[t]he MMBA imposes on local public entities a duty to meet and confer in good faith with representatives of recognized employee organizations, in order to reach binding agreements governing wages, hours, and working conditions of the agencies' employees. ([§] 3505.)" (Coachella Valley, supra, 35 Cal.4th at p. 1083.)
It is well established that the MMBA applies to charter cities. (People ex rel. Seal Beach Police Officers Assn. v. City of Seal Beach (1984) 36 Cal.3d 591, 597 (Seal Beach).)
B. The Public Employment Relations Board (PERB)
"The history of the PERB begins in 1975, when the Legislature adopted the Educational Employment Relations Act ([§§] 3540-3549.3; hereafter the EERA) . . . . As part of this new statutory scheme, the Legislature created the Educational Employment Relations Board (EERB), an 'expert, quasi-judicial administrative agency modeled after the National Labor Relations Board, to enforce the act.' [Citation.] The Legislature vested the EERB with authority to adjudicate unfair labor practice charges under the EERA. [Citation.] [¶] The Legislature structured the EERA with the intention that it would eventually be expanded to incorporate other public employees." (Coachella Valley, supra, 35 Cal.4th at pp. 1084-1085.) The EERB was renamed the PERB in 1977. (Id. at p. 1085.)
"Since 1977, the PERB's jurisdiction has continued to expand as the Legislature has enacted new employment relations laws covering additional categories of public agencies and their employees." (Coachella Valley, supra, 35 Cal.4th at p. 1085.) "In 2000, the Legislature extended PERB's jurisdiction to cover matters under the MMBA--this was done through enactment of [section] 3509, which became effective July 1, 2001. (Stats. 2000, ch. 901, § 8.) Subdivision (b) of that statute provides in relevant part: 'A complaint alleging any violation of [the MMBA] . . . shall be processed as an unfair practice charge by [PERB]. The initial determination as to whether the charge of unfair practice is justified and, if so, the appropriate remedy necessary to effectuate the purposes of this chapter, shall be a matter within the exclusive jurisdiction of [PERB].' This enactment removed 'from the courts the initial jurisdiction over MMBA unfair practice charges' [citation] and vested such jurisdiction in PERB [citation]." (Operating Engineers, supra, 49 Cal.4th at p. 605.)
C. The Firefighters Procedural Bill of Rights Act (FFBOR)
The FFBOR (§§ 3250-3262) became effective on January 1, 2008. (Stats. 2007, ch. 591, § 2.) The Legislative Counsel's Digest described the legislation as follows: "This bill would enact the Firefighters Procedural Bill of Rights Act to prescribe various rights of firefighters, defined as any firefighter employed by a public agency, including a firefighter who is a paramedic or emergency medical technician, with specified exceptions. The bill would prescribe rights related to, among others, political activity, interrogation, punitive action, and administrative appeals, with specified requirements imposed upon the employing agency and the imposition of a civil penalty for a violation thereof. The bill would also specify that reimbursement of funds by the state shall be limited to the actual costs associated with the act, as specified. [¶] By adding to the duties of local agencies to comply with that act, this bill would impose a state-mandated local program." (Legis. Counsel's Dig., Assem. Bill No. 220 (2007-2008 Reg. Sess).)
The FFBOR includes several provisions that concern disciplinary proceedings for firefighters. Section 3254, subdivision (b), provides, "Punitive action or denial of promotion on grounds other than merit shall not be undertaken by any employing department or licensing or certifying agency against any firefighter who has successfully completed the probationary period without providing the firefighter with an opportunity for administrative appeal." "Punitive action" is defined in the FFBOR as "any action that may lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment." (§ 3251.)
The FFBOR also provides the procedure for an administrative appeal of a punitive action, such as a written reprimand: "An administrative appeal instituted by a firefighter under this chapter shall be conducted in conformance with rules and procedures adopted by the employing department or licensing or certifying agency that are in accordance with Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2." (§ 3254.5, subd. (a).) Section 11500 et seq. is part of the Administrative Procedures Act and generally governs administrative hearings. (§11370; Lake v. Reed (1997) 16 Cal.4th 448, 458.)
Section 11502, subdivision (a) of Part 1 of Division 3 of Title 2 provides in part, "All hearings of state agencies required to be conducted under this chapter shall be conducted by administrative law judges on the staff of the Office of Administrative Hearings." An alternative is provided by subdivision (b) of section 3254.5, a recent amendment to section 3254.5 (Stats. 2010, ch. 465, § 1) that provides in part, "Notwithstanding subdivision (a) [of section 3254.5], if the employing department is subject to a memorandum of understanding that provides for binding arbitration of administrative appeals, the arbitrator or arbitration panel shall serve as the hearing officer in accordance with Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 and notwithstanding any other provision that hearing officer's decision shall be binding."
The City is a charter city under the California Constitution, article XI, section 5, subdivision (a).*fn3 The Union is a recognized employee organization that represents the City's firefighters. The parties entered into a collective bargaining agreement, known as the Memorandum of Agreement (MOA), which covered the period of March 1, 2004, to June 30, 2009.
The labor dispute in this case arises from Article 44 of the MOA, entitled "Separability," which provides in pertinent part, "Notwithstanding any other provisions of this Agreement to the contrary, . . . should . . . any applicable State or Federal law or regulation . . . impose additional obligations on the City, the parties shall meet and confer or negotiate on the Article or subsections thereof affected. If they are unable to come to an agreement on the matter, the provisions of Section 1111 of the Charter shall apply. All other provisions of this Agreement not affected shall continue in full force and effect." (Capitalization omitted.)
Section 1111 of the San Jose City Charter provides in pertinent part, "The City, through its duly authorized representatives, shall negotiate in good faith with the recognized fire and police department employee organizations on all matters relating to the wages, hours, and other terms and conditions of City employment, including the establishment of procedures for the resolution of grievances submitted by either employee organization over the interpretation or application of any negotiated agreement including a provision for binding arbitration of those grievances . . . . [¶] All disputes or controversies pertaining to wages, hours, or terms and conditions of employment which remain unresolved after good faith negotiations between the City and other fire or police department employee organization shall be submitted to a three-member Board of Arbitrators upon the declaration of an impasse by the City or by the recognized employee organization involved in the dispute." (San Jose City Charter (1965 as amended through 2004), art. XI.)
In a letter to the City's Director of Employee Relations, dated April 3, 2008, the Union requested the City to meet and confer regarding the implementation of the FFBOR. The letter stated, "As you are aware, AB 220, the [Firefighters] Procedural Bill of Rights Act became effective January 1, 2008. [¶] Local 230 would like to meet and confer with the City of San Jose concerning the implementation of the FFBOR. Accordingly, please contact [the undersigned] as soon as practicable to set a date, time and place to begin discussions."
The City refused the Union's request to meet and confer in a letter from the Director of Employee Relations to the Union dated August 4, 2008: "I have received your letter dated April 3, 2008, which stated your request to meet and confer regarding the implementation of the Firefighters Procedural Bill of Rights . . . . The City does not believe that any implementation of this state law is subject to the meet and confer process."
After the City refused to meet and confer regarding the FFBOR, the Union initiated proceedings in the trial court.
IV. PROCEDURAL BACKGROUND
On January 30, 2009, the Union filed a verified "petition for writ of mandate, prohibition or other appropriate relief and petition to compel arbitration." (Capitalization omitted.)
In its petition, the Union asserted that the FFBOR applies to any California city that provides firefighting services and gives "enhanced employment rights not generally available to other public employees, including the right to an administrative appeal following a written reprimand. ([§] 3254, [subd.] (b) and § 3254.5)." The Union also asserted that under section 3254.5 of the FFBOR, "[a]n administrative appeal instituted by a firefighter in response to punitive action must be conducted in conformance with the rules and procedures adopted by the employing department that are in accordance with the Administrative Procedures Act [§] 11500, et seq[.]" Further, the Union stated, "[t]his new procedure presents the need for the development of appropriate procedural protocol."
Since the City had refused to meet and confer regarding the implementation of the FFBOR, the Union asserted that the City was required by San Jose City Charter section 1111 and Article 44 of the MOA to submit the dispute to arbitration. In its points and authorities in support of the petition, the Union explained that a dispute regarding the interpretation and application of the MOA, such as the parties' dispute as to whether Article 44 of the MOA requires the parties to bargain over the implementation of the FFBOR, must be submitted to arbitration under the terms of Article 44 and section 1111. The Union also stated in its petition that the City had refused the Union's demand that it submit the matter to arbitration, and therefore the Union sought an order compelling the City to arbitrate.
B. The City's Opposition to the Petition
The City opposed the Union's petition on several grounds. First, the City contended that the provisions of FFBOR that authorize administrative appeals for punitive actions did not apply to the City because the FFBOR cannot preempt the existing ordinances and policies of a charter city. Alternatively, the City asserted that even assuming the trial court determined that the disputed provisions of the FFBOR applied to the City, PERB had jurisdiction to determine whether the parties were required to meet and confer.
The City also argued that arbitration of the dispute would not be appropriate because the MOA requires the parties to meet and confer and reach an impasse as a prerequisite to arbitration, and that prerequisite had not been satisfied. Additionally, the City claimed that the parties' dispute was not covered by the grievance and arbitration provisions of the MOA since the dispute concerned the threshold legal issue of the applicability of the FFBOR, rather than its implementation.
Finally, the City sought an award of attorney's fees and costs pursuant to the MOA.
C. The City's Motion for Judgment on the Pleadings
The City filed a motion for judgment on the pleadings, in which it sought an order denying the Union's petition. The City argued that its motion was appropriate because the petition presented the purely legal issue of whether the City may be compelled to implement the provisions of the FFBOR that conflicted with the City's existing procedures for appeals of firefighter discipline, in light of the City's status as a charter city.
In support of its motion, the City asserted that the FFBOR appeared to require formal hearings before administrative law judges for all levels of punitive action, including a written reprimand. According to the City, the FFBOR's requirement that an administrative law judge hear appeals of all levels of firefighter discipline conflicts with the City's existing procedures, which limit appeals of written reprimands and documented oral counseling to the level of city manager and provide that all other firefighter discipline may be appealed to the Civil Service Commission.
Relying on Johnson v. Bradley (1992) 4 Cal.4th 389 (Johnson), the City argued that under home rule provision of the California Constitution, article XI, section 5, laws enacted by charter cities prevail over conflicting state laws, with only two exceptions: either the state law implicates a matter of statewide concern or it is "narrowly tailored to limit incursion into legitimate municipal interests." The City further argued that the FFBOR did not preempt the City's procedure for appeals of firefighter discipline because the FFBOR's requirement that all administrative appeals be heard by administrative law judges was not narrowly tailored to address any statewide concern regarding due process in administrative appeals of firefighter disciplinary matters.
D. The Union's Opposition to the Motion for Judgment on the Pleadings
The Union opposed the motion for judgment on the pleadings on two grounds. First, the Union contended that Article 44 of the MOA requires an arbitrator, not the court, to decide the legal issue of whether the FFBOR imposes additional obligations on the City that require bargaining. Second, the Union rejected the City's claim that the home rule provisions of the California Constitution, article XI, section 5, precluded application of the FFBOR to the City. The Union's view was that the FFBOR preempted municipal law because the statute was narrowly tailored and impinged only minimally on the City's municipal interests, since the FFBOR would allow the City to ...