El Dorado County Deputy Sheriff's Ass'n v. County of El Dorado

Filed 2/11/16

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(El Dorado)

----

EL DORADO COUNTY DEPUTY SHERIFF'S C075615

ASSOCIATION,

(Super. Ct. No. PC20120637)

Plaintiff and Appellant,

v.

COUNTY OF EL DORADO et al.,

Defendants and Respondents.

APPEAL from a judgment of the Superior Court of El Dorado County, Warren C.

Stracener, Judge. Reversed in part and affirmed in part.

Mastagni, Holstedt, Amick, Miller & Johnsen, Mastagni Holstedt, Kathleen N.

Mastagni Storm, and Jeffrey R.A. Edwards for Plaintiff and Appellant.

Wendi L. Ross, Acting General Counsel, and James E. Coffey, Regional Attorney,

for Public Employment Relations Board as Amicus Curiae on behalf of Plaintiff and

Appellant.

Renne Sloan Holtzman Sakai, Timothy G. Yeung, and Erich W. Shiners for

Defendants and Respondents.

1

In 2011, defendant El Dorado County (the County) created a new classification

(sheriff’s security officer) for employees providing court perimeter security and placed

the new classification in a general bargaining unit rather than the County’s law-

enforcement bargaining unit because the sheriff’s security officers would not have peace

officer authority. At the same time, the County deleted several positions (all of which

were vacant) from the law-enforcement bargaining unit. One year later, plaintiff El

Dorado County Deputy Sheriff’s Association (the Association), the exclusive

representative of the County’s law-enforcement bargaining unit, demanded to bargain

over the decision to create the new classification, even though the Association had actual

notice of the decision before it was implemented. The County denied the Association’s

request to meet and confer.

The Association filed a petition for writ of mandate in the trial court, alleging that

the County did not provide advance notice of the creation of the sheriff’s security officer

classification and violated its duty to meet and confer.1 The petition also alleged that the

County violated its own local rules. The petition sought restoration of the status quo

existing before creation of the new classification, which would require the County to

nullify its action more than a year after it was taken and presumably terminate the 11

sheriff’s security officers already hired, so that the Association could demand to bargain

over the decision and its effects.

The trial court found the County had no duty to bargain over the decision because

the work assigned to sheriff’s security officers is not work belonging to the law-

1 The Public Employment Relations Board (PERB) is an independent state

administrative agency created by the Educational Employment Relations Act. (Gov.

Code, §§ 3540-3548) But labor disputes relating to peace officers, such as this dispute,

are not subject to PERB jurisdiction. (Gov. Code, § 3511.) Nevertheless, we may look

to PERB authority for guidance in addressing the issues in this case.

2

enforcement bargaining unit. The Association does not dispute this conclusion on

appeal.2

The trial court also found that, while the County had a duty to bargain over the

effects of the decision, which included loss of overtime opportunities for members of the

Association, the Association waived its right to bargain over the effects of the decision

because it had actual advance notice of the change before the change was made and did

not make a demand to bargain.

On appeal, the Association contends that the trial court erred by finding that the

Association waived its bargaining rights. It claims that the County was required to give

advance notice not only of the decision but also of the reasonably foreseeable effects of

the decision to create the sheriff’s security officer classification. We conclude that the

law does not require an employer to give advance notice of the reasonably foreseeable

effects of the decision; instead, the employer must give advance notice only of the

decision.

Finally, the trial court found that the County did not violate its own rules in

deleting positions from the law-enforcement bargaining unit. The Association contends

the trial court erred in making this finding. We agree that the County violated the local

rule by failing to give notice to and consult with the Association before deleting the

positions. Deletion of the law-enforcement bargaining unit positions must be invalidated

so that the County can comply with the local rules.

2 This finding is not in dispute even though it is also undisputed that the effects of

the decision included loss of overtime opportunities for members of the Association.

This latter fact indicates that the work assigned to the sheriff’s security officers was work

that members of the Association previously performed to obtain overtime.

3

TRIAL COURT RULING

The trial court filed an statement of intended decision, which became the

statement of decision when the Association did not object. (Cal. Rules of Court, rule

3.1590.)

The trial court reached the following conclusions concerning the facts and law

pertinent to this appeal:

 The duties of the new sheriff’s security officer classification are not bargaining

unit work belonging to the law-enforcement bargaining unit, which is represented

by the Association.

 The County did not have a duty to bargain over the decision to assign court

perimeter security duties to employees outside the law-enforcement bargaining

unit.

 The County had a duty to provide reasonable notice and an opportunity to bargain

over the effects of its decision to assign court perimeter security duties to

employees outside the law-enforcement bargaining unit because the decision had a

reasonably foreseeable effect on matters within the scope of bargaining

(specifically, on overtime opportunities).

 Association president Todd Crawford discussed the establishment of the new

sheriff’s security officer classification in June 2011.

 An Association officer attended the County Board of Supervisors’ meeting in

August 2011, when the board adopted the resolution creating the sheriff’s security

officer classification.

 The Association did not make a demand to bargain over the decision until August

2012, one year after the new classification was established. The Association did

not demand to bargain over the effects of the decision.

4

 The County’s decision did not violate its own local rules when it deleted the

vacant positions from the law-enforcement bargaining unit.

DISCUSSION

I

Waiver of Bargaining Over Effects

The Association contends the trial court erred because the County had a duty to

give the Association notice, not only of the decision, but also of the foreseeable effects of

the decision, to establish the sheriff’s security officer classification. According to the

Association, advance notice of the decision without specifying the foreseeable effects of

the decision, was insufficient to support a finding that the Association waived its right to

bargain concerning the effects of the decision. The contention is without merit because

an employer has a duty to give notice only of the decision, not of the reasonably

foreseeable effects of the decision.

“The [Meyers-Milias-Brown Act (MMBA)] applies to local government

employees in California. [Citation.] ‘The MMBA has two stated purposes: (1) to

promote full communication between public employers and employees, and (2) to

improve personnel management and employer-employee relations. (§ 3500.)[3] To

effect these goals the act gives local government employees the right to organize

collectively and to be represented by employee organizations (§ 3502), and obligates

employers to bargain with employee representatives about matters that fall within the

“scope of representation” (§§ 3504.5, 3505).’ [Citation.] The duty to meet and confer in

good faith is limited to matters within the ‘scope of representation’: the public employer

and recognized employee organization have a ‘mutual obligation personally to meet and

confer promptly upon request by either party . . . and to endeavor to reach agreement on

3 This and all remaining code citations, though not specified, are to the Government

Code.

5

matters within the scope of representation prior to the adoption by the public agency of

its final budget for the ensuing year.’ (§ 3505.) Even if the parties meet and confer, they

are not required to reach an agreement because the employer has ‘the ultimate power to

refuse to agree on any particular issue. [Citation.]’ [Citation.] However, good faith

under section 3505 ‘requires a genuine desire to reach agreement.’ [Citation.]”

(Claremont Police Officers Assn. v. City of Claremont (2006) 39 Cal.4th 623, 630

(Claremont), fn. omitted.)

The public employer’s duty to bargain arises under two circumstances: (1) when

the decision, itself, is subject to bargaining, and (2) when the effects of the decision are

subject to bargaining, even if the decision, itself, is nonnegotiable. (Claremont, supra, 39

Cal.4th at p. 633-634.) Here, the trial court found that the County had a duty to bargain

because the effects of the decision to create the new sheriff’s security officer

classification (decreased overtime opportunities for law-enforcement bargaining unit

members) were subject to bargaining, and neither party asserts on appeal that the trial

court’s finding was erroneous.

If a public employer has a duty to bargain over either the decision or the effects of

the decision to implement a change, then the employer must give notice to the employee

organization so that it can make a demand to bargain. (Public Employment Relations Bd.

v. Modesto City Schools Dist. (1982) 136 Cal.App.3d 881, 900.) “Failure by the

[employee organization] to assert its bargaining rights after receiving notice of the

proposed change in terms of employment constitutes waiver of its rights. (Stockton

Police Officers’ Assn. v. City of Stockton (1988) 206 Cal.App.3d 62.) Formal notice of a

proposed change delivered to a union official is, of course, appropriate. Notice need not

. . . be formal to be effective. When a union official with authority to act has actual

notice of the intended change, together with adequate time to decide whether to demand

negotiation before a final decision is made, the union will be deemed to have received

adequate notice. (Victor Valley Teachers Association v. Victor Valley Union High School

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District (Apr. 10, 1986) PERB Dec. No. 565 [10 PERC [para.] 17079].)”4 (San Diego

Adult Educators v. Public Employment Relations Bd. (1990) 223 Cal.App.3d 1124,

1136.)

In this case, we must address the nature of the notice given. Specifically, does the

public employer have a duty to give notice only of the decision? Or must notice include

a specification of the reasonably foreseeable effects of the decision? Here, the decision

was to create the sheriff’s security officer classification, and the effect was to decrease

overtime opportunities for law-enforcement bargaining unit members represented by the

Association. According to the trial court’s findings, the Association had actual notice of

the decision to create the sheriff’s security officer classification, but the court did not find

that the County gave notice that the decision would decrease overtime opportunities for

the Association’s members.

We conclude that statutory and decisional law requires notice only of the decision,

not of the reasonably foreseeable effects of the decision.

Section 3504.5, subdivision (a) requires the public employer to give notice of “any

ordinance, rule, resolution, or regulation directly relating to matters within the scope of

representation proposed to be adopted by the governing body or the designated boards

and commissions . . . .” The notice statute does not mention notice of the effects of the

decision to adopt the ordinance, rule, resolution, or regulation.

PERB has held that “[t]he notice must be communicated in a manner which

clearly informs the recipient of the proposed change.” (Victor Valley Union High School

Dist., supra, PERB Dec. No. 565 at p. 5.) Thus, the required notice is of the decision to

4 We “generally defer to PERB’s construction of labor law provisions within its

jurisdiction. [Citations.]” (County of Los Angeles v. Los Angeles County Employee

Relations Com. (2013) 56 Cal.4th 905, 922.) As we explained in footnote 1, however,

this case is not within PERB’s jurisdiction. Although we need not defer to PERB here,

we may consider PERB decisions and arguments to the extent they are persuasive.

7

make a change, not of the reasonably foreseeable effects of the decision on the bargaining

unit.

PERB, in its amicus brief, argues unequivocally that the public employer need

give advance notice only of the decision, not the reasonably foreseeable effects of the

decision. PERB writes: “PERB precedent has consistently required that an employer

provide notice to the employee organization [citation], which is ‘reasonable,’ ‘clear and

unequivocal,’ and ‘clearly inform[s] the [union] of the nature and scope of the proposed

change.’ [Citations.] [County of Santa Clara (2103) PERB Dec. No. 2321, which we

discuss more fully below,] does not place any additional burden on the employer to

identify the foreseeable effects of the proposed change, but to merely identify the ‘nature

and scope’ of the non-negotiable decision . . . .”

PERB’s interpretation is consistent, generally, with notice requirements in the law.

Actual notice of a circumstance also apprises the recipient of foreseeable effects,

especially when the recipient of notice is just as capable of perceiving the foreseeable

effects as the giver. For example, actual notice of a dangerous condition may give the

recipient of notice a duty to prevent a foreseeable harm. (See Cornette v. Department of

Transportation (2001) 26 Cal.4th 63, 66 [actual notice of dangerous condition led to

liability for reasonably foreseeable risks].)

The Association, however, argues that PERB, in County of Santa Clara, changed

the law concerning notice of reasonably foreseeable effects. As noted, PERB denies that

position, and the language of the County of Santa Clara decision does not support the

Association’s argument.

In County of Santa Clara, PERB considered whether an employee organization

must first demand to bargain over the effects of a decision when the decision, itself, is

nonnegotiable, even if the public employer did not give notice before implementing the

decision. PERB concluded that, “[o]nce an employer takes unilateral action on a matter

in which the decision is within the scope of bargaining, the union is excused from

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demanding to bargain over that fait accompli.” (County of Santa Clara, supra, PERB

Dec. No. 2321 at p. 24.) And, “the same principle applies equally to the situation where

the union is presented with a unilateral, unnoticed imposition of a management decision

over which only effects are negotiable.” (Ibid.)

In its amicus brief, PERB characterizes the holding of County of Santa Clara as

follows: “[W]hen an employer implements a non-negotiable policy with foreseeable

negotiable effects without fulfilling its duty to provide prior notice to the union and an

opportunity to bargain, the union is no longer required to make a post-implementation

bargaining demand before it can access PERB to seek enforcement of its rights through a

bargaining order.”

We generally defer to PERB decisions (County of Los Angeles v. Los Angeles

County Employee Relations Com., supra, 56 Cal.4th at p. 922), but in this case giving

deference to PERB’s County of Santa Clara decision does not affect the outcome

because, unlike the union in County of Santa Clara, the Association had actual notice of

the decision to create the sheriff’s security officer classification before that decision was

implemented.

The Association disagrees with PERB’s interpretation of County of Santa Clara.

It claims that County of Santa Clara requires the public employer to give advance notice

of the decision and also the reasonably foreseeable effects of the decision. To support

this position, the Association quotes County of Santa Clara, which concluded that “the

employer violated its duty to bargain in good faith by unilaterally [implementing a non-

negotiable decision] without giving [the union] prior reasonable notice and an

opportunity to bargain over the reasonably foreseeable effects within the scope of

representation of this non-negotiable decision.” (County of Santa Clara, supra, PERB

Dec. No. 2321 at p. 32, fn. omitted.)

Contrary to the Association’s assertion, this language does not create a new duty

on the part of the public employer to give notice of the reasonably foreseeable effects.

9

Instead, the public employer has a duty to give notice of the decision, which notice gives

the employee organization the opportunity to demand to bargain over the reasonably

foreseeable effects of the decision. In County of Santa Clara, the public employer gave

no notice at all. Therefore, the nature of the notice, itself, was not before PERB in that

case.

Despite the fact that County of Santa Clara does not require notice of reasonably

foreseeable effects, PERB, in its amicus brief, argues that we must reverse and remand on

this issue. But we disagree.

The focus of PERB’s amicus brief is that the trial court erred by not deferring to

PERB’s decision in County of Santa Clara. Indeed, the trial court misinterpreted County

of Santa Clara as requiring the public employer to give advance notice of the reasonably

foreseeable effects of a nonnegotiable decision. The court refused to defer to County of

Santa Clara because the court perceived that this PERB decision overturned precedent

that actual notice to the employee organization satisfies the public employer’s duty to

give notice even when formal notice was not given. But that was not the holding of

County of Santa Clara; it did not deal with the form of notice. It dealt with a situation in

which no notice at all was given, either formal or actual. Even though we conclude the

trial court misinterpreted County of Santa Clara, a trial court’s errors of reasoning as to

the law are harmless and do not require reversal if the result was correct. (Cal. Const.,

art. VI, § 13; see also Carnes v. Superior Court (2005) 126 Cal.App.4th 688, 694.)

PERB asks this court to “reverse the decision of the Trial Court and defer to the

Board’s decision in County of Santa Clara. Reversal is necessary to prevent conflicting

judicial and PERB decisions regarding interpretation of the MMBA.” What PERB does

not consider in its amicus brief, however, is whether, even deferring to County of Santa

Clara, the judgment (as opposed to the reasoning) of the trial court was correct. We

conclude that deferring to County of Santa Clara does not require a result different from

10

the result reached by the trial court. Therefore, the issue of proper deference to a PERB

decision does not affect the outcome in this case and is immaterial on appeal.

In summary, we conclude that the County did not have a duty to give notice to the

Association of the reasonably foreseeable effects of the decision to create the new

sheriff’s security officer classification. Because the trial court concluded that the County

gave the Association advance notice of the decision to create the sheriff’s security officer

classification, the court did not err by concluding that such notice was sufficient under

the circumstances of this case.

II

Compliance with Local Rules

The Association contends that the County violated its own local, labor relations

rule by deleting positions in the law-enforcement bargaining unit without giving notice to

and consulting with the Association. The Association further contends that, because the

County violated its own rule, the appropriate remedy is to direct the County to restore the

sheriff sergeant and deputy sheriff positions deleted from the law-enforcement bargaining

unit and to eliminate the sheriff’s security officer positions created in the general

bargaining unit. While we agree that the County violated its own rule, we conclude that

the appropriate remedy is to restore the positions deleted from the law-enforcement

bargaining unit and direct the County to proceed according to law.5

Two resolutions of the County’s board of supervisors are at issue in this case.

Resolution No. 145-2011 created the sheriff’s security officer classification and placed it

5 The trial court did not find that the Association had actual advance notice of the

decision to delete positions from the law-enforcement bargaining unit. In opposing the

relief sought by the Association, the County argued in the trial court that there was no

violation of the local rules because those positions were vacant, existing only on paper.

The County does not renew on appeal its contention that, because the positions were

vacant, deletion of the positions from the law-enforcement bargaining unit complied with

the local rules.

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in a general bargaining unit. And resolution No. 146-2011 changed the allocation of

positions in three classifications. Resolution No. 146-2011 (1) reduced the number of

sheriff sergeant positions from 26 to 25.5; (2) reduced the number of deputy sheriff

positions from 129 to 124; and (3) increased the number of sheriff’s security officer

positions from 0 to 11. The sheriff sergeant and deputy sheriff positions are in the law-

enforcement bargaining unit represented by the Association.

The County’s local rules concerning employee relations include two provisions

relevant to this appeal.

Section 8 of county resolution No. 10-83 states, in pertinent part: “The [County]

shall, after notice and consultation with affected employee organizations, allocate new

classifications or positions, delete eliminated classifications or positions, and retain,

reallocate or delete modified classifications or positions from units in accordance with the

provisions of this section.” (Italics added.)

Section 2(d) of the same resolution defines “ ‘Consult/Consultation in Good

Faith.’ ” It “means to communicate orally or in writing for the purpose of presenting and

obtaining views or advising of intended actions; and, as distinguished from meeting and

conferring in good faith regarding matters within the required scope of such meet and

confer process[,] does not involve an exchange of proposals and counter-proposals in an

endeavor to reach agreement . . . .”

As a result of these local rules, the County had a duty to give notice to and consult

with the Association before deleting the sheriff sergeant and deputy sheriff positions from

the law-enforcement bargaining unit. There was no duty to meet and confer or exchange

proposals. In other words, there was no duty to negotiate.

The County did not give notice to and consult with the Association before it

deleted the positions from the law-enforcement bargaining unit. Therefore, it violated the

plain meaning of the local rule. And it also violated section 3507.1, subdivision (a),

which requires a local public agency to follow its own rules.

12

But the County claims it did not violate the local rule because (1) the local rule did

not require notice and consultation, (2) the MMBA does not require the County to meet

and confer under these circumstances, and (3) a consultation requirement interferes with

the authority of the board of supervisors over the County’s budget. None of these

arguments has merit.

First, the County acknowledges that section 8 of resolution No. 10-83 “requires

notice and consultation only when the County proposes to modify a bargaining unit by,

among other things, deleting classifications or positions from an existing unit.”

However, it claims it did not delete positions from the law-enforcement bargaining unit.

Instead, it merely reallocated funds. This argument flies in the face of the actual

resolution, which reduced the number of sheriff sergeant and deputy sheriff positions.

Second, the County’s assertion that the MMBA does not require the County to

meet and confer over the deleted positions misses the point. The County violated its own

rule, which violation is also a violation of the MMBA. (§ 3507.1.)

And third, the local rule requiring notice and consultation does not interfere with

the authority of the board of supervisors over the County’s budget. It merely gives the

Association the opportunity to argue against the change; it does not require the County to

negotiate.

Having concluded that the County violated its own local rule by failing to give

notice to and consult with the Association about deleting the positions from the law-

enforcement bargaining unit, we turn to the remedy. Not surprisingly, the parties also

disagree on this question.

The Association contends that we must invalidate the resolutions, with the effect

of not only restoring the deleted positions in the law-enforcement bargaining unit that had

been vacant, but also retroactively eliminating the sheriff’s security officer positions –

positions now held by County employees. On the other hand, the County contends that

we cannot order a remedy because it would either violate the separation of powers

13

doctrine or interfere with the County’s management rights. Neither contention has merit.

The only appropriate remedy is to undo the deletion of the law-enforcement bargaining

unit positions and require the County to proceed according to law.

The County’s violation of its local rule is not a violation of a meet-and-confer

requirement. The County had no duty to confer or negotiate, only to give notice and

consult – that is, allow the Association to argue against the changes. But the cases the

Association cites to bolster its argument that we must invalidate both resolutions are

meet-and-confer cases in which the public agency was required to negotiate with the

employee association. (See, e.g., Oakland Unified School Dist. v. Public Employment

Relations Bd. (1981) 120 Cal.App.3d 1007, 1014-1015; Vernon Fire Fighters v. City of

Vernon (1980) 107 Cal.App.3d 802 (Vernon Fire Fighters).) We recognize that, in

Vernon Fire Fighters, the Court of Appeal held that there was no essential difference

between a local rule that required the local public agency to “ ‘meet and consult’ ” and

one that requires the agency to “ ‘meet and confer.’ ” (Id. at pp. 820-821.) However, in

the local rules at issue here, consultation is defined only to require the County to allow

the Association to present its views, “and, as distinguished from meeting and conferring

in good faith regarding matters within the required scope of such meet and confer

process[,] does not involve an exchange of proposals and counter-proposals in an

endeavor to reach agreement . . . .” Therefore, the cases cited by the Association do not

provide authority for the circumstances of this case, in which there was no meet-and-

confer requirement.

In the meet-and-confer cases cited by the Association, it was important to restore

the status quo ante so that the parties could begin negotiations in the same position they

would have been in if the violation had not occurred. Here, on the other hand, there is no

requirement to negotiate. As to creating the sheriff’s security officer positions in the

general bargaining unit, the County had no duty even to give notice to and consult with

the Association under the local rule, and, in any event, the Association had notice. As to

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deleting the law-enforcement bargaining unit positions, the County had a duty to give the

Association notice and allow the Association to make arguments against the change,

which the County did not do. Since the MMBA requires compliance with local rules, the

commonsense, legally supportable remedy is to invalidate the action that violated the

local rule – deletion of the law-enforcement bargaining unit positions – and direct the

County to proceed according to law.

The County’s separation of powers argument is not well taken. The County

claims that directing it to restore the deleted positions would affect the County budget;

therefore, we cannot make that order. In support of this proposition, the County

primarily cites County of Butte v. Superior Court (1985) 176 Cal.App.3d 693 (County of

Butte). In County of Butte, a county board of supervisors drastically reduced the sheriff’s

budget, requiring elimination of many deputy positions. The sheriff sued the county, and

the trial court granted a preliminary injunction preventing the county from taking the

legislated action. (Id. at pp. 695-696.) On review, we reversed the preliminary

injunction because the sheriff had no possibility of prevailing on the merits. (Id. at p.

697.) Concerning separation of powers, we noted that the county board of supervisors

has legislative authority over the county budget and the staffing of the sheriff’s

department. As a result, the board of supervisors’ legislative decision was beyond the

power of the courts. (Id. at pp. 698-699.)

County of Butte does not support the County’s position because we are not

attempting to dictate legislation but instead are merely enforcing the manner in which the

County is permitted (by its own rules, in this instance) to legislate. Under the local rules,

the County is required to give notice to and consult with the Association before deleting

positions within the law-enforcement bargaining unit. In County of Butte, the point was

that the courts cannot make legislative determinations for the county; here, we are

concerned with whether the County proceeds according to law.

15

The County’s argument that we cannot require it to restore the deleted law-

enforcement bargaining unit positions because it would interfere with the County’s

“management right” is also not well taken. As the County explains, and in its own

words, “[t]he MMBA . . . allows a public agency employer to determine the appropriate

composition of its bargaining units, subject to any limitations in its local rules. (Gov[.]

Code § 3507.1; [citation].” Applied to the circumstances of this case, the County had the

right to delete positions from the law-enforcement bargaining unit, subject to any

limitations in the County’s local rules, including the requirement to give notice to and

consult with the Association before deleting the positions.

Having established that it has a management right to delete positions, the County

argues that, if it violates local rules in the process, the proper remedy is not to undo the

action but instead, in the County’s words, “to order the County to consult with [the

Association], upon request, over the effects of the deletion of those positions.” The

County also argues that a limited award of backpay is available in some circumstances

but not here because the deleted positions were already vacant.

The authority the County cites for its proposed remedy is inapplicable under the

circumstances of this case. In Highland Ranch v. Agricultural Labor Relations Bd.

(1981) 29 Cal.3d 848 (Highland Ranch), the Supreme Court held that the proper remedy

for an employer’s failure to negotiate with a labor union before shutting down its

business (by selling the ranch) was to not only bargain over the effects of the shutdown

but also to pay the employees during that bargaining period in order to restore some of

the bargaining power lost when the employer unilaterally shut down. (Id. at pp. 862-

866.) This creative remedy was necessary because the employer’s action could not be

undone (id. at p. 863), not because the employer had exercised some inalienable

management right.

16

Here, on the other hand, restoring the deleted law-enforcement bargaining unit

positions is possible. Therefore, we need not invoke the extraordinary remedy discussed

in Highland Ranch.

There is no impediment, therefore, to an order invalidating the action that violated

the local rule – deletion of the vacant law-enforcement bargaining unit positions – and

directing the County to proceed according to law.

One final matter requires our attention:

The Association argues that we should direct the County to distribute notice to the

Association’s members that the County violated the law in deleting the law-enforcement

bargaining unit positions. For this proposition, the Association cites no statute or rule but

instead several PERB decisions. While, as noted above, we generally defer to PERB

decisions (County of Los Angeles v. Los Angeles County Employee Relations Com.,

supra, 56 Cal.4th at p. 922), this is not a matter of interpreting a provision of the

Government Code, including the MMBA, applicable to the County and the Association.

The PERB decision cited by the Association involved a violation of a meet-and-

confer requirement and included this passage, which the Association quotes in its brief:

“ ‘It is the ordinary remedy in PERB cases to order that the party found to have

committed an unfair practice to [sic] post a notice incorporating the terms of that order.

Posting of such notice informs employees of the resolution of the matter and of the

employer’s readiness to comply with the ordered remedy.’ (City of Selma (2014) PERB

Decision No. 2380-M, p. 26 [39 PERC ¶ 11], [citation].)”

Since this is not a “PERB case[],” and the Association provides no statute or rule

requiring this notice, we decline to order it. In any event, we conclude that a posting

requirement in this case would not benefit the parties or further the purposes of the

MMBA because no actual employees were affected by the decision to delete vacant

positions.

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DISPOSITION

The part of the order concerning deletion of the vacant law-enforcement

bargaining unit positions is reversed with directions to enter a new order invalidating the

County’s deletion of the vacant law-enforcement bargaining unit positions and directing

the County to proceed according to law and consistent with this opinion. In all other

respects, the order is affirmed. The parties will bear their own costs on appeal. (Cal.

Rules of Court, rule 8.278(a).)

NICHOLSON , Acting P. J.

We concur:

MAURO , J.

DUARTE , J.

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