City of Palo Alto v. Public Employment Relations Board

Filed 11/23/16

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

CITY OF PALO ALTO, H041407

(Santa Clara County

Petitioner, Super. Ct. No. SF-CE-869-M)

v.

PUBLIC EMPLOYEMENT RELATIONS

BOARD,

Respondent;

INTERNATIONAL ASSOCIATION OF

FIREFIGHTERS, LOCAL 1319, AFL-CIO,

Real Party in Interest.

Since 1978, article V of the City of Palo Alto‟s (hereafter, City) charter provided

that impasses in negotiations regarding wages, hours, and other terms and conditions of

employment for the City‟s police and firefighters would be submitted to binding interest

arbitration. In 2011, the Palo Alto City Council (City Council) voted to place on the

ballot for the upcoming election a measure that repealed this binding interest arbitration

provision. Real party in interest the International Association of Firefighters, Local 1319,

AFL-CIO (IAFF) filed an unfair practice charge with the Public Employment Relations

Board (PERB), alleging the City placed the measure before voters without consulting in

good faith with the IAFF, as required by the Meyers-Milias Brown Act (MMBA) (Gov.

Code, § 3500 et seq.).1 A PERB administrative law judge (ALJ) found in the City‟s

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Unspecified statutory references are to the Government Code.

favor. This decision was later reversed by PERB. By that time, the measure repealing

the binding interest arbitration provision had already been passed by the voters. As part

of its remedy, PERB ordered the City to rescind its resolution from 2011 referring the

measure to the voters.

Pursuant to section 3509.5, the City requested this court issue a writ of

extraordinary relief annulling PERB‟s decision and directing PERB to dismiss the unfair

practice charge. We granted a writ of review. As we explain below, we find PERB‟s

conclusion that IAFF sufficiently requested to meet and consult with the City is

supported by substantial evidence and determine the constitutional issues raised by the

City are meritless. Nonetheless, PERB‟s order directing the City Council to rescind its

resolution violated the doctrine of separation of powers by ordering a legislative body to

take legislative action. We therefore annul PERB‟s decision and remand the matter back

to PERB with directions to strike this remedy.

BACKGROUND

1. The City‟s Consideration of an Amendment to the City Charter

In 1978, the city charter was amended to add article V, titled “Compulsory

Arbitration for Fire and Police Department Employee Disputes.” Section 4 of article V

provided: “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 either the 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. [¶] . . . [¶] At the

conclusion of the arbitration hearings, the arbitration board . . . shall decide each issue by

majority vote by selecting whichever last offer of settlement on that issue it finds most

nearly conforms with those factors traditionally taken into consideration in the

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determination of wages, hours, and other terms and conditions of public and private

employment . . . .”

On April 12, 2010, the city manager prepared a report to the City Council. The

report indicated the City was facing a budget deficit of $8.3 million in 2011. The report

also provided suggestions on how to balance the City‟s budget.

In May 2010, the Santa Clara County civil grand jury issued a report that analyzed

the employment costs of cities within the county. In part, the report noted that in times of

economic boom, cities had opted to attract qualified candidates with increased wages and

pension benefits, which were largely guaranteed by union collective bargaining

agreements. The report noted that binding interest arbitration had compounded the

problem in the City of San Jose. Suggestions were provided on how cities could address

the issues caused by increasing costs and included a discussion about binding arbitration.

The report noted: “Binding arbitration is not open to the public and results in an

adversarial process between the city and employee groups. Binding arbitration limits the

ability of city leaders to craft solutions that work for the city‟s budget. The process has

resulted in wage and benefit decisions that have been greater than the growth in basic

revenue sources.” The report recommended the City of San Jose prepare a ballot

measure repealing the section of its city charter dealing with binding arbitration. No

specific recommendations were made to the City to take similar action.

The City Council reviewed the report and discussed its findings. In particular, the

City Council focused on the report‟s analysis of binding arbitration. On July 19, 2010,

the City Council directed its staff to prepare a measure repealing binding arbitration in

article V of the city charter, which was to be placed on the November 2010 ballot.

2. Initial Communications Regarding the City‟s Consideration of the Ballot Measure

On July 22, 2010, attorneys for the Palo Alto Police Managers Association (PMA)

wrote a letter to the city manager. The PMA told the City that it was obligated to comply

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with the meet and confer requirements of the MMBA before taking any action on the

proposed charter amendment to repeal article V, citing to People ex rel. Seal Beach

Police Officers Assn. v. City of Seal Beach (1984) 36 Cal.3d 591 (Seal Beach).

The following day, Tony Spitaleri, president of the IAFF, also wrote a letter to the

city manager. Spitaleri joined in the PMA‟s assertion that the City was required to meet

and confer with the IAFF and other recognized employee organizations under the

MMBA. Spitaleri noted that in 2010, the City of Vallejo complied with the MMBA‟s

meet and confer requirement before it placed a measure repealing binding arbitration on

its ballot. At the conclusion of his letter, Spitaleri urged the city manager to “begin a

dialogue with [the IAFF] and with other labor organizations which would be affected by

any effort to remove or modify the Article V requirements.”

On July 26, 2010, Russell Carlsen with the City‟s department of human resources

responded to Spitaleri‟s letter. Carlsen advised Spitaleri that the City Council was going

to consider the repeal of the binding arbitration provision in article V during its July 26,

2010 meeting and was intending on placing the measure on the ballot at its August 2,

2010 meeting. Carlsen then stated: “Interest arbitration provisions are a permissive, not

mandatory, subject of bargaining (see DiQuisto v. County of Santa Clara (2010) 181

Cal.App.4th 236, 255-57; City of Fresno v. [People ex rel.] Fresno Firefighters, IAFF

Local 753 (1999) 71 Cal.App.4th 82, 96-97). As such, meet and confer is not required.

However, if you have questions or comments about the Council‟s proposal you may

contact me or attend the Council meetings on July 26 and August.”

That same day, Gary Baum, the city attorney, wrote to the City Council,

addressing the meet and confer issue raised by the IAFF and the PMA. Baum opined that

the City had no obligation to meet and confer with the labor organizations under the

MMBA. Baum reasoned that the MMBA only required the City to meet and confer about

matters within the scope of representation, such as employee wages, hours, and working

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conditions. Baum noted that the IAFF and the PMA relied on Seal Beach. Baum,

however, concluded that Seal Beach was distinguishable.

On August 2, 2010, the City Council held a meeting and discussed the proposed

ballot measure to repeal binding arbitration in article V. Councilmember Holman moved

to adopt a resolution calling to place before the voters the measure repealing binding

arbitration at a special election on November 2, 2010. The motion failed by a vote of five

to four. The City Council then directed its staff to “return in the fall with a timeline for

consideration of binding arbitration and ideas through study sessions, outreach to the

community organizations, in order to get background information and benchmarking

data.”

3. The Policy and Services Committee‟s Consideration of the Proposed Ballot

Measure to Repeal Article V

After the City Council‟s meeting in August 2010, the City‟s policy and services

committee began considering a measure to repeal the binding arbitration provision in

article V. In May 2011, the City staff prepared a report with information about the

proposal to repeal binding interest arbitration.

On May 3, 2011, Sandra Blanch, the City‟s interim human resources director,

wrote a letter to Spitaleri informing him that the policy and services committee would

begin discussing a potential measure repealing binding arbitration on May 10, 2011. The

letter informed Spitaleri that if he wished to “meet and discuss regarding this issue,” he

should contact Marcie Scott at the City‟s human resources department.

That same day, Spitaleri wrote an e-mail to Scott. Spitaleri asked if Blanch‟s letter

was “a request to meet and confer over possible changes to Article V prior to the Policy

and Services Standing Committee meeting on May 10.” Spitaleri did not receive a

response to the e-mail. He later left Blanch a voicemail following up on whether her

letter was a request to meet and confer. Spitaleri did not receive a response from Blanch.

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During the hearing on the IAFF‟s unfair practice charge, Scott testified that she did not

receive the e-mail from Spitaleri, because her e-mail inbox had been full.

On May 10, 2011, the policy and services committee provided the City Council

with a report reviewing the binding interest arbitration provision in the city charter. The

report summarized the binding interest arbitration provision and binding interest

arbitration decisions in the City, analyzing their impact. The report remarked that one of

the primary criticisms of binding arbitration was that it delegated decisionmaking

authority to an unelected third party who was not responsible or accountable to citizens.

The report also included a table listing future election dates and deadlines for submitting

proposed ballot language. The report concluded that if the committee determined that the

interest arbitration provision did not meet the City and the citizens‟ needs, it may

recommend modifying or repealing the binding interest arbitration provision. Spitaleri

was sent a copy of the report.

The policy and services committee held a meeting on the matter that day. During

the meeting, City Attorney Molly Stump expressed her opinion that Seal Beach applied to

the City Council‟s consideration of the ballot measure. Stump noted that a “meet and

confer” did not require the parties to reach an agreement; rather, the parties were to make

a good faith attempt to narrow their differences and exchange information. An attorney

for the PMA spoke during the meeting. Spitaleri did not attend the meeting, but the

IAFF‟s secretary attended. The policy and services committee did not reach a conclusion

regarding binding interest arbitration and continued the matter to June 7, 2011, pending

further research on how binding interest arbitration impacted other cities outside of Santa

Clara County and California.

On June 3, 2011, Scott sent Spitaleri an e-mail containing a link to an agenda and

a packet of information detailing the policy and services committee‟s discussion

regarding binding interest arbitration.

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On June 7, 2011, the policy and services committee convened and discussed

binding interest arbitration again. The committee was unable to reach a consensus on

how to proceed. It then forwarded the matter to the City Council for a policy decision on

whether to proceed with a ballot measure to either repeal or modify article V.

On June 16, 2011, Ron Watson, the president of the PMA, sent an e-mail to Scott

reiterating the PMA‟s desire to meet and confer about the proposed measure to repeal or

modify binding interest arbitration. Scott replied to Watson‟s e-mail and informed him

that she was unaware of what steps the City Council would take, and once the City

Council had determined its next steps she would contact Watson and they could discuss

how to move forward. On June 18, 2011, Scott sent an e-mail to Watson and to Spitaleri

with a link to the City Council‟s agenda for June 20, 2011. Binding interest arbitration

was set to be discussed at that meeting.

4. The City Council‟s Consideration of Modifying or Repealing Interest Arbitration

The City Council held a special meeting on June 20, 2011. Scott advised the City

Council that the policy and services committee was seeking direction on how to proceed

and whether to pursue repeal or modification of the binding arbitration provision. The

chair of the policy and services committee stated that the committee was evenly split on

whether to modify or to repeal binding interest arbitration.

Spitaleri spoke on behalf of the IAFF. Spitaleri explained that he believed the

firefighters presently had a fair process through which they could settle labor disputes.

The IAFF opposed repealing the binding arbitration provision in article V and

recommended the matter be returned to the policy and services committee where all

affected labor organizations could participate in the discussion and make

recommendations to the City Council. Spitaleri opined that denying labor organizations a

chance to participate could harm relations in the future. Barry Marchiso, another member

of the IAFF, also advocated that the issue be returned to the policy and services

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committee to give organizations a chance to participate in discussions regarding potential

revisions to the interest arbitration provision.

The City Council was split on the issue of repeal versus modification. Some

council members spoke in favor of modifying binding arbitration in some way.

Ultimately, the City Council voted to refer the matter back to the policy and services

committee with directions for the committee to (1) draft language providing for

significant modifications to the binding interest arbitration provision, (2) provide

language repealing the interest arbitration provision, and (3) return with a

recommendation on when the election should occur, should there be a need for one. The

policy and services committee was to report back to the City Council by June 25, 2011.

On June 28, 2011, the policy and services committee held a meeting and again

discussed binding interest arbitration. Following a discussion, the committee directed its

staff to draft a ballot measure repealing the binding arbitration provision in article V, an

alternative ballot measure modifying binding arbitration, and an ordinance requiring

mandatory mediation. Although the IAFF did not present anything, the secretary of the

IAFF attended the meeting. Spitaleri later explained that the IAFF was aware that

interest arbitration was going to be discussed at the meeting. The IAFF, however, was

told only that they could present their opinions to the committee by speaking at the

meeting at the microphone. To Spitaleri, this did not mean the IAFF would have an

opportunity to participate in a dialogue with the policy and services committee about

interest arbitration, and it was not the type of discussion or participation that Spitaleri

believed was required under the MMBA.

On July 11, 2011, Scott sent Spitaleri an e-mail notifying him that the policy and

services committee was going to meet again the following day. Attached to the e-mail

were several documents prepared by Stump, including a draft resolution repealing the

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binding interest arbitration provision in article V, a draft resolution modifying binding

arbitration, and a draft ordinance requiring mediation.

On July 12, 2011, the policy and services committee held another meeting about

binding interest arbitration. The committee voted to present to the full City Council a

draft resolution repealing article V and enacting an ordinance providing for mandatory

mediation effective upon the repeal of article V for the November 8, 2011 election.

On July 17, 2011, Scott sent Spitaleri an e-mail informing him that the full City

Council would be considering binding interest arbitration at its meeting the following

night. Attached to the e-mail were documents containing the agenda packet for the

meeting.

The city attorney‟s office prepared a report dated July 18, 2011, which again

opined that the City was not required to meet and confer with labor organizations,

because interest arbitration was a permissive, not a mandatory, subject of bargaining.

The city attorney‟s report indicated that staff provided fire and police organizations with

the opportunity to informally discuss and comment on the proposal by alerting them of

the dates of the policy and services committee meetings when interest arbitration was

discussed. The report noted that the organizations did not submit any oral or written

comments during the meetings.

5. The City Council‟s Approval of a Resolution to Place on the November 8, 2011

Ballot a Measure to Repeal Binding Interest Arbitration

On July 18, 2011, the City Council met and discussed binding interest arbitration.

During the meeting, Spitaleri spoke and requested the City Council adhere to

section 3507 and the MMBA and consult in good faith with representatives of recognized

employee organizations before adopting procedures for the resolutions of disputes

involving wages, hours, and other terms and conditions of employment. Mayor Espinosa

asked Stump whether there was noncompliance with the MMBA, and Stump responded

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that there was a threat of noncompliance but that binding arbitration was not a matter that

was within the mandatory scope of bargaining.

Following the public comment period, the City Council passed a motion to adopt a

resolution calling a special election for November 8, 2011, to submit to the electorate a

measure to repeal article V to eliminate the binding interest arbitration requirement. The

City Council also approved a motion adding a section to the City‟s municipal code

requiring nonbinding mediation for impasses in labor negotiations with all recognized

employee organizations.

After the meeting, Spitaleri spoke with Darrell Murray, the City‟s chief labor

negotiator, outside the City Council chambers. Spitaleri asked Murray to respond to his

earlier request that the City comply with the MMBA and consult with the IAFF. Murray

told Spitaleri to send him an e-mail, which Spitaleri did. Later, Murray responded to

Spitaleri‟s e-mail, writing that Scott had told him to send Spitaleri a copy of the staff

report that set forth the City‟s position on whether a consultation was necessary. The

staff report was the one prepared by Stump, the city attorney, which concluded the city

was not required to negotiate over the repeal or amendment of article V.

6. The IAFF Initiates an Unfair Practice Charge Against the City

On July 28, 2011, the IAFF filed an unfair practice charge against the City with

PERB. The IAFF alleged that the City had violated the MMBA when it failed to consult

with labor organizations over the proposed ballot measure.

On August 1, 2011, Stump sent a letter to the IAFF. The letter stated that Stump

had reviewed the IAFF‟s unfair practice charge, and the City had learned, for the first

time from the unfair practice charge, that the IAFF was interested in meeting with the

City regarding the proposed ordinance establishing mandatory mediation. At that time,

the mediation ordinance had not been finally adopted by the City Council. To provide an

additional opportunity for a dialogue with the union, the City staff had removed the

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mediation ordinance from the upcoming City Council meeting‟s agenda. Stump

proposed several dates for meetings to discuss the mediation ordinance. The letter did

not mention the IAFF‟s request to meet regarding the repeal of binding interest

arbitration.

On November 8, 2011, the election took place and the ballot measure repealing the

binding arbitration provision in article V was passed.

7. PERB‟s Decision

On September 7, 2011, PERB‟s general counsel filed a complaint alleging the City

had engaged in unfair practices in violation of the MMBA. In part, the complaint alleged

the City failed to consult in good faith with the IAFF regarding the ballot measure to

repeal binding arbitration.2

An evidentiary hearing took place before an ALJ. Following the hearing, the ALJ

issued a proposed decision in November 2011. The decision noted that section 3507

required that a public agency adopt reasonable rules regarding additional procedures for

the resolution of disputes based on matters within the scope of representation after a

“consultation in good faith.” Section 3507 was distinct from section 3505, which

requires a public agency to meet and confer in good faith regarding wages, hours, and

other terms and conditions of employment with representatives of recognized labor

organizations. The ALJ determined the process mandated by the “consultation in good

faith” requirement under section 3507, however, was very similar to the process

mandated by the “meet and confer” requirement set forth under section 3505.

Based on the evidence presented, the ALJ concluded that the City had provided

the IAFF with written notice for an opportunity to meet within a reasonable period of

time. The IAFF, however, had not requested to consult in good faith in a timely fashion.

2

The complaint also charged the City with failing to meet over the mediation

ordinance. Later, this charge was dismissed following the evidentiary hearing.

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The ALJ opined that by mid-June 2011, Spitaleri should have been aware that the

measure had to be approved by August 1, 2011, if it was to be on the November 8, 2011

ballot. On June 18, 2011, when Spitaleri asked the City Council to abide with the

MMBA, the request was no longer timely.

Both the City and the IAFF filed exceptions to the ALJ‟s proposed decision. On

August 6, 2014, PERB issued its final decision on the matter. PERB‟s decision adopted

the ALJ‟s conclusion that section 3507 and the consultation process set forth therein was

akin to the meet and confer process set forth under section 3505. PERB held that under

section 3507, a public agency must: “(1) provide reasonable written notice to each

employee organization affected by the rule or regulation proposed for adoption or

modification by the agency; and (2) afford each such organization a reasonable

opportunity to meet and discuss the rule or regulation prior to the agency‟s adoption.”

(Fn. omitted.) Additionally, PERB concluded that “section 3507 imposes on a public

agency and on recognized employee organizations, several mutual obligations in the

conduct of consultation, which are to: (1) meet and confer regarding consultation

subjects promptly upon the request by either party; (2) continue meeting and conferring

for a reasonable period of time in order to exchange freely information, opinions and

proposals; and (3) endeavor to reach an agreement.”

PERB then concluded, contrary to the ALJ, that the IAFF did not waive its right

under the MMBA to consult in good faith with the City. PERB determined that the IAFF

had requested to discuss the issue with the City as early as July 2010. This request was

acknowledged but denied. Again, in June 2011, the City acknowledged the IAFF‟s desire

to discuss the issue with the City, but the City confined the discussion to participation in

public meetings. And on July 18, 2011, the IAFF again requested to meet with the City,

but the City acted unilaterally and refused to meet with the IAFF on the issue.

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Citing these facts, PERB concluded that the IAFF had not waived its right to meet and

consult under the MMBA.

Although PERB determined that the City had violated the MMBA, it also held it

could not overturn the election results repealing article V. PERB concluded a quo

warranto writ is the exclusive remedy in these types of situations. PERB, however, found

it had the authority to direct the City Council to rescind the July 18, 2011 resolution

referring to the voters the ballot measure. Thereafter, interested persons, including the

IAFF, could seek quo warranto relief from the courts. PERB also directed the City to

cease and desist from further unlawful conduct in violation of the MMBA and to post a

notice incorporating the terms of the order at all work locations where notices to unit

employees are customarily posted.

DISCUSSION

The City, along with amicus curiae from the League of California Cities (League),

takes issue with PERB‟s decision. First, the City claims that PERB‟s legal determination

that the City was required to consult in good faith over the ballot measure repealing

binding interest arbitration undermined well-established law. Second, the City argues

that PERB erred when it concluded that the IAFF had not waived its right to consultation.

Lastly, the City argues that PERB lacked authority to order the City Council to rescind its

action placing the measure repealing article V on the ballot, and the decision is an

impermissible advisory opinion since it cannot change the results of the election. PERB

and the IAFF reject these arguments and insist that PERB‟s decision was sound.

1. Standard of Review

Before we address the merits of the City‟s claims, we first discuss the appropriate

standard of review that must be applied to this case.

“As the expert administrative agency established by the Legislature to administer

collective bargaining for covered governmental employees, PERB has exclusive initial

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jurisdiction over conduct that arguably violates the MMBA.” (San Diego Municipal

Employees Assn. v. Superior Court (2012) 206 Cal.App.4th 1447, 1458.) “PERB is

specifically empowered to „determine in disputed cases whether a particular item is

within or without the scope of representation‟ and to investigate unfair practice charges

and „take such action and make such determinations in respect of such charges . . . as the

board deems necessary to effectuate the policies of [the MMBA].‟ ” (San Mateo City

School Dist. v. Public Employment Relations Bd. (1983) 33 Cal.3d 850, 856, superseded

by statute on other grounds as stated in California School Employees Assn. v. Bonita

United School Dist. (2008) 163 Cal.App.4th 387.) PERB‟s construction of a statute

within its legislatively designated field of expertise will be regarded with deference and

will be followed unless it is clearly erroneous. (Ibid.) And PERB decisions are

persuasive authority on legal matters that are within its expertise. (San Lorenzo

Education Assn. v. Wilson (1982) 32 Cal.3d 841, 850.)

Noting the deference afforded to PERB over matters within its expertise, the City

argues PERB should not be given deference over its interpretation of the election law or

constitutional law issues raised by this case. However, it is “settled precedent that PERB

may construe employee relations laws considering constitutional precedent” (San Diego

Municipal Employees Assn. v. Superior Court, supra, 206 Cal.App.4th at p. 1458;

Cumero v. Public Employment Relations Bd. (1989) 49 Cal.3d 575, 583), and PERB‟s

construction of statutes such as sections 3505 and 3507 fall squarely within its expertise.

Nonetheless, we agree with the City that “ „[i]t is, however, “the duty of this court,

when . . . a question of law is properly presented, to state the true meaning of the

statute . . . even though this requires the overthrow of an earlier erroneous administrative

construction.” ‟ ” (Cumero v. Public Employment Relations Bd., supra, 49 Cal.3d at

p. 587.) Thus, if PERB‟s interpretation is clearly erroneous, we will not follow it.

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A different standard of review applies to PERB‟s determinations of fact. As the

City notes, PERB did not accept all of the ALJ‟s conclusions of fact. In situations where

parties file exceptions to an ALJ‟s proposed decision, PERB reviews the record de novo

“and is empowered to reweigh the evidence and draw its own factual conclusions.”

(California Teachers Assn. v. Public Employment Relations Bd. (2009) 169 Cal.App.4th

1076, 1086.) PERB is not bound by the ALJ‟s determination of the weight to be

accorded to each piece of evidence. “ „[PERB], not the hearing officer, is the ultimate

fact finder, entitled to draw inferences from the available evidence.‟ ” (Id. at p. 1087.)

PERB‟s determination on factual issues is upheld if supported by substantial

evidence. (California State Employees‟ Assn. v. Public Employment Relations Bd. (1996)

51 Cal.App.4th 923, 932-933 (California State).) “ „Under the substantial evidence

standard, when a labor board chooses between two conflicting views, a reviewing court

may not substitute its judgment for that of [PERB].‟ ” (Id. at p. 933.) The reviewing

court may not reweigh the evidence; if there is a plausible basis for PERB‟s factual

decisions “ „ “we are not concerned that contrary findings may seem to us equally

reasonable, or even more so.” ‟ ” (Ibid.)

The City asserts that this court must review the entire record to determine whether

substantial evidence supports PERB‟s factual determinations. The City is correct;

PERB‟s factual findings must be “supported by substantial evidence on the record

considered as a whole.” (§ 3564, subd. (c).) Nonetheless, “ „[a]s the United States

Supreme Court has observed [in a similar context], “To be sure, the requirement for

canvassing „the whole record‟ in order to ascertain substantiality does not furnish a

calculus of value by which a reviewing court can assess the evidence. Nor was it

intended to negative the function of the Labor Board as one of those agencies presumably

equipped or informed by experience to deal with a specialized field of knowledge, whose

findings within that field carry the authority of an expertness which courts do not possess

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and therefore must respect. Nor does it mean that even as to matters not requiring

expertise a court may displace the Board‟s choice between two fairly conflicting views,

even though the court would justifiably have made a different choice had the matter been

before it de novo.” ‟ ” (California State, supra, 51 Cal.App.4th at p. 933.)

2. The City was Required to Consult with the IAFF Under Section 3507

First, we must examine whether PERB‟s decision that the City was required to

consult with labor organizations under the MMBA is sound. In order to determine

whether the City was required to consult, we first examine whether binding arbitration is

within the scope of representation of the MMBA. And if so, what actions the City must

have taken in order to be in compliance with the MMBA.

a. Binding Arbitration Is a Mandatory Subject of Consultation

Under Section 3507

In its decision, PERB concluded that although binding arbitration is a permissive,

not mandatory, subject of bargaining under sections 3504 and 3505, the duty to consult in

good faith under section 3507 is distinct both conceptually and by its own terms.

Therefore, binding arbitration is properly considered a mandatory subject of consultation

under section 3507.

The City and the League argue that PERB‟s conclusion goes against long-standing

precedent finding that binding arbitration is not a mandatory subject of bargaining. In

DiQuisto v. County of Santa Clara, supra, 181 Cal.App.4th 236 (DiQuisto) this court

held that “interest arbitration is not a mandatory subject of contract negotiations” but is a

“permissive subject about which the parties properly may meet and confer.” (Id. at

p. 257.) DiQuisto, however, is not directly on point. DiQuisto contemplated binding

arbitration in the context of the duty to “meet and confer” under section 3505 and did not

address the duty to consult in good faith under section 3507.

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City of Fresno v. People ex rel. Fresno Firefighters, supra, 71 Cal.App.4th at

pages 97 through 98 (Fresno Firefighters), also relied on by the City, is similarly not

dispositive. There, the appellate court found that an interest arbitration clause was a

permissive, not mandatory, subject of bargaining under the National Labor Relations Act

(NLRA) and construed that binding arbitration was also not a mandatory subject of

bargaining under sections 3504 and 3505. (Fresno Firefighters, supra, at pp. 97-98.) A

conclusion that binding arbitration is not a mandatory subject of bargaining under

sections 3504, 3505, and the NLRA—which does not include a provision similar to

section 3507—does not automatically render binding arbitration outside the purview of

the good faith consultation requirement set forth under section 3507.

This is because there are distinctions between sections 3504, 3505, and 3507, both

in their language and in their purposes. Section 3504 defines “scope of representation” as

including “all matters relating to employment conditions and employer-employee

relations, including, but not limited to, wages, hours, and other terms and conditions of

employment, except, however, that the scope of representation shall not include

consideration of the merits, necessity, or organization of any service or activity provided

by law or executive order.” Section 3505 requires employers to “meet and confer” with

employee organizations “regarding wages, hours, and other terms and conditions of

employment.”

Section 3507, however, states that employers “may adopt reasonable rules and

regulation after consultation in good faith” (§ 3507, subd. (a)) with labor organizations

for the administration of employer-employee relations under the MMBA, including

“[a]dditional procedures for the resolution of disputes involving wages, hours and other

terms and conditions of employment” (id., subd. (a)(5)) and “[a]ny other matters that are

necessary to carry out the purposes of this chapter” (id., subd. (a)(9)).

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Thus, section 3504 discusses a labor organization‟s authority to represent its

members in certain employer relations disputes, such as those that involve wages.

Section 3505 provides that public agencies must meet and confer in good faith with

representatives of recognized employee organizations before determining policy or

courses of action regarding wages, hours, and other terms and conditions of employment.

Section 3507, on the other hand, deals with public agencies‟ ability to establish

reasonable rules and regulations regarding the administration of employer-employee

relations under the MMBA. And section 3507 subjects the development of these

reasonable rules and regulations to a requirement that the public agency must first

consult with recognized employee organizations. Therefore, it is not paradoxical or

illogical to conclude that a provision regarding binding arbitration does not fall within the

scope of representation set forth under sections 3504 and 3505 (i.e., wages, hours, and

terms of conditions of employment), but is a mandatory subject of consultation under

section 3507. According to its plain language, section 3507 encompasses matters that do

not necessarily trigger the duty to meet and confer under section 3505.

Furthermore, the City‟s claim that PERB has illogically concluded that binding

arbitration falls outside the scope of representation for purposes of section 3504 but

within the scope of representation under section 3507 fails to acknowledge that cases like

DiQuisto and Fresno Firefighters interpreted the scope of representation under

sections 3504 and 3505. (See DiQuisto, supra, 181 Cal.App.4th 236; Fresno

Firefighters, supra, 71 Cal.App.4th at pp. 97-98.) We reiterate that these cases did not

discuss section 3507. And the City and the League do not cite to authority or cogently

explain why matters that are the mandatory subject of a consultation in good faith under

section 3507 must be within the mandatory scope of representation under sections 3504

and 3505. As PERB stated in its decision, “the mandatory subjects for consultation

specified in section 3507 concern the very system of collective representation established

18

by the MMBA, and not employee wages, hours and terms and conditions of

employment” that are subject to meeting and conferring under sections 3504 and 3505.

Similarly, the League and the City argue that section 3504‟s scope of

representation provides certain exceptions. “[T]he scope of representation shall not

include consideration of the merits, necessity, or organization of any service or activity

provided by law or executive order.” (§ 3504.) The exception stated in section 3504 was

meant to exclude agencies from the duty to bargain if an action, even if it has adverse

effects on wages, hours, or working conditions, was taken “pursuant to a fundamental

managerial or policy decision.” (Building Material & Construction Teamsters‟ Union v.

Farrell (1986) 41 Cal.3d 651, 660.) If so, it is “within the scope of representation only if

the employer‟s need for unencumbered decisionmaking in managing its operations is

outweighed by the benefit to employer-employee relations of bargaining about the action

in question.” (Ibid.) The City and the League argue the exception applies. However, as

we just discussed, the City and the League fail to offer support for their contention that

section 3504 (and section 3505, for that matter) limits the matters that are subject to good

faith consultation under section 3507.3

3

Additionally, the City raises this argument for the first time in its reply brief.

“ „Points raised for the first time in a reply brief will ordinarily not be considered,

because such consideration would deprive the respondent of an opportunity to counter the

argument.‟ [Citation.] „Obvious reasons of fairness militate against consideration of an

issue raised initially in the reply brief of an appellant.‟ ” (Reichardt v. Hoffman (1997)

52 Cal.App.4th 754, 764.) Although the League addresses these arguments in its amicus

brief curiae, we could still decline to address this contention, because it was not raised in

the City‟s opening brief. “ „Amicus Curiae must accept the issues made and the

propositions urged by the appealing parties, and any additional questions presented in a

brief filed by an amicus curiae will not be considered.‟ [Citations.] Otherwise, amicus

curiae, rather than the parties themselves, would control the issues litigated. It would

also be inappropriate for amicus curiae unilaterally to augment the scope and thus the

cost of litigation to the opposing party.” (Lance Camper Manufacturing Corp. v.

Republic Indemnity Co. (2001) 90 Cal.App.4th 1151, 1161, fn. 6.)

19

Lastly, the City casts doubt on whether binding arbitration can properly be

considered an additional procedure for resolution of disputes under section 3507. The

City argues that Bagley v. City of Manhattan Beach (1976) 18 Cal.3d 22 confirms that it

cannot. The City relies on a statement from Bagley, where the court commented that “the

Meyers-Milias-Brown Act provides for negotiation and permits the local agency and the

employee organization to agree to mediation but not to fact-finding or binding

arbitration.” (Id. at p. 25.) Bagley, however, did not consider whether binding

arbitration is a permissive or mandatory subject of bargaining under any of the provisions

of the MMBA. Rather, Bagley held that the statutory duty of a general law city to fix

compensation for its employees could not be delegated to an arbitrator when impasses in

salary negotiations arose. (Id. at p. 26.) As often stated by the California Supreme Court,

“cases are not authority for propositions not considered.” (Hagberg v. California Federal

Bank (2004) 32 Cal.4th 350, 374.) The City‟s reliance on Bagley is therefore misplaced.

In sum, PERB articulated in its decision that the matters that are mandatory

subjects for consultation under section 3507 are distinct from the mandatory subjects of

meeting and conferring under sections 3504 and 3505. PERB‟s interpretation of the

MMBA is within its legislatively designated field of expertise, so we must defer to its

analysis unless it is clearly erroneous. In this case, we do not believe PERB‟s

interpretation of section 3507 is clearly erroneous.

b. Scope of Duty to Consult (§ 3507) Compared with Duty to

Confer (§ 3505)

Section 3505 provides in pertinent part: “The governing body of a public agency,

or such boards, commissions, administrative officers or other representatives as may be

properly designated by law or by such governing body, shall meet and confer in good

faith regarding wages, hours, and other terms and conditions of employment with

representatives of such recognized employee organizations.” Section 3505 describes that

20

“ „[m]eet and confer in good faith‟ means that a public agency, or such representatives as

it may designate, and representatives of recognized employee organizations, shall have

the mutual obligation personally to meet and confer promptly upon request by either

party and continue for a reasonable period of time in order to exchange freely

information, opinions, and proposals, and to endeavor to reach agreement on matters

within the scope of representation prior to the adoption by the public agency of its final

budget for the ensuing year. The process should include adequate time for the resolution

of impasses where specific procedures for such resolution are contained in local rule,

regulation, or ordinance, or when such procedures are utilized by mutual consent.”

On the other hand, section 3507 operates to restrict a public agency from adopting

reasonable rules and regulations for the administration of employer-employee relations

unless it has a “consultation in good faith” with recognized employee organizations. The

rules of regulations contemplated by section 3507 include “[a]dditional procedures for

the resolution of disputes involving wages, hours and other terms and conditions of

employment.” (§ 3507, subd. (a)(5).)

Section 3507 does not specifically describe the “consultation in good faith”

process that is contemplated by the statute. PERB, along with the ALJ, concluded that

the “consultation in good faith” mandated by section 3507 is very much like the “meet

and confer” process mandated under section 3505.4

Again, we defer to PERB‟s analysis on this point. As PERB noted in its decision,

multiple appellate court decisions have reached the very same conclusion. (Independent

4

In its decision, PERB laid out three mutual obligations for public agencies and

recognized employee organizations to have during the conduct of consultation, requiring

the parties to: “(1) meet and confer regarding consultation subjects promptly upon the

request by either party; (2) continue meeting and conferring for a reasonable period of

time in order to exchange freely information, opinions and proposals; and (3) endeavor to

reach an agreement.”

21

Union of Pub. Service Employees v. County of Sacramento (1983) 147 Cal.App.3d 482,

488 [“In a related context, it has been held that „ “consultation in good faith” ‟ is the

equivalent of „ “meet and confer in good faith” ‟ ”]; Vernon Fire Fighters v. City of

Vernon (1980) 107 Cal.App.3d 802, 821 (Vernon); International Assn. of Fire Fighters

Union v. City of Pleasanton (1976) 56 Cal.App.3d 959, 976 [“We perceive no basis for

distinguishing between the term „consultation in good faith,‟ as used in section 3507, and

the „meet and confer in good faith‟ process defined in section 3505.”].)

The City recognizes that appellate courts have consistently held that the duty to

meet and consult under section 3507 and the duty to meet and confer under section 3505

are comparable. The City, however, argues these cases should not be followed, because

they fail to analyze the impact of the Legislature‟s use of different language (confer as

compared to consultation in good faith) in the statutes. In fact, the City notes that some

of the cited cases offer no analysis at all, simply declaring that the meet and confer

requirements are comparable to the consultation in good faith requirement. The City

insists that PERB‟s decision contradicts the established principle of statutory construction

that “ „[w]hen the Legislature uses different words as part of the same statutory scheme,

those words are presumed to have different meanings.‟ ” (Roy v. Superior Court (2011)

198 Cal.App.4th 1337, 1352.)

We are not persuaded by the City‟s argument. Canons of statutory construction

are meant to provide guidance in interpreting a statute. However, they “ „are “merely

aids to ascertaining probable legislative intent.” [Citation.] No single canon of statutory

construction is an infallible guide to correct interpretation in all circumstances.‟ „[The

canons] are tools to assist in interpretation, not the formula that always determines it.‟ ”

(Medical Board v. Superior Court (2001) 88 Cal.App.4th 1001, 1013, fn. omitted.)

Aside from pointing out that the Legislature utilized different language in sections 3505

and 3507, the City does cite to actual evidence in the statutes‟ legislative history that

22

would indicate that the Legislature intended for them to have different meanings.5

Furthermore, PERB‟s decision did not state the two duties were indistinguishable from

each other. Rather, PERB held that the consultation in good faith requirement was very

similar to the duty to meet and confer.

PERB‟s decision also conforms to its prior precedent. The City argues that in San

Dieguito Union High School Dist. (1977) EERB Dec. No. 22E [1 PERC ¶ 369] (San

Dieguito), PERB analyzed the employer‟s duty to consult under the Educational

Employment Relations Act (EERA) (§ 3540 et seq.) and interpreted this duty differently.

We disagree.

The City misreads PERB‟s decision in San Dieguito, which found the duty to

consult under the EERA was equivalent to the duty to “ „meet and confer‟ ” as used under

the now-repealed Winton Act.6 (San Dieguito, supra, EERB Dec. No. 22E at p. 12,

fn. 11.) Under the Winton Act, “ „[m]eet and confer‟ mean[t] that a public school

employer, or such representatives as it may designate, and representatives of employee

organizations shall have the mutual obligation to exchange freely information, opinions,

and proposals; and to make and consider recommendations under orderly procedures in a

conscientious effort to reach agreement by written resolution, regulation, or policy of the

governing board effectuating such recommendations.” (Ibid.) The language of this

definition bears a striking resemblance to the definition of “meet and confer” set forth

under section 3505.

5

In its reply brief, the City argues the statute‟s legislative history dictates a

different result. The City, however, still does not cite to anything in the sections 3505

and 3507‟s legislative histories that would support its argument. Instead, the City merely

rehashes its earlier argument that the Legislature must have intended a different result,

because it used different language (consult instead of meet and confer) in section 3507.

6

In 1975, the Legislature repealed the Winton Act and replaced it with the EERA.

(Board of Education v. Round Valley Teachers Assn. (1996) 13 Cal.4th 269, 279-280.)

23

Furthermore, San Dieguito focused on distinguishing the duty to consult under the

EERA and the duty to negotiate. (San Dieguito, supra, EERB Dec. No. 22E at

pp. 10-11.) “Meeting and negotiating,” as defined under section 3540.1, subdivision (h),

“means meeting, conferring, negotiating, and discussing by the exclusive representative

and the public school employer in a good faith effort to reach agreement on matters

within the scope of representation and the execution, if requested by either party, of a

written document incorporating any agreements reached, which document shall, when

accepted by the exclusive representative and the public school employer, become binding

upon both parties . . . .” As noted in San Dieguito, unlike the duty to meet and negotiate,

the duty to consult “means that a school employer must consider the exclusive

representative‟s proposals, but a school employer is not bound to attempt in good faith to

reach a negotiated written agreement.” (San Dieguito, supra, at pp. 10-11.)

Finding that the duty to consult in good faith under section 3507 is similar to the

duty to meet and confer under section 3505 does not deviate from PERB‟s precedent in

San Dieguito. In fact, San Dieguito supports PERB‟s determination in this case. Like the

definition of “consultation” contemplated in San Dieguito, the duty to meet and confer

under section 3505 requires public agencies to meet with employee organizations to

exchange information, opinions, and proposals. And PERB‟s decision did not state that

under section 3507, the parties must, in good faith, reach an agreement that will become

binding. Under PERB‟s decision, if the parties have consulted in good faith and

attempted—but failed—to reach an agreement, the requirements of section 3507 would

be satisfied.

In its reply brief, the City makes a strained argument that there ought to be a

distinction between the meet and confer process contemplated in section 3505 and the

good faith consultation process contemplated in section 3507, because under

section 3505.7, if a meet and confer process fails to produce an agreement, a public

24

agency that is not required to proceed to interest arbitration may, after a public hearing

regarding the impasse, implement its last, best, and final offer.

This argument ignores PERB‟s decision, which, as we noted earlier, states

that the process mandated by section 3507 is “very much like” the process mandated by

section 3505. Again, PERB did not state the two processes were identical. In its

decision, PERB articulated that the process mandated by section 3507 required certain

obligations in the conduct of consultation, which included an obligation to “endeavor to

reach an agreement.” PERB then expressly declined to consider questions that were not

presented by the current case, such as “the extent to which disagreements unresolved

during the consultation process are properly the subject of any dispute resolution

processes established for treating collective bargaining disputes arising under MMBA

section 3505 . . . .” Under the current process set forth under PERB‟s decision, the

parties are not required to reach a binding agreement. Rather, the parties must merely

endeavor to reach an agreement in the first instance.

Here, however, it is clear that the City failed to meet its obligation to consult in

good faith. Even assuming that the consultation requirement should be markedly

different than the meet and confer requirement, it, at the least, requires the parties to meet

and discuss the issues. This minimal requirement would be in line with PERB‟s decision

in San Dieguito and its interpretation of the duty to meet and consult under the EERA.

(San Dieguito, supra, EERB Dec. No. 22E at p. 12, fn. 11.) It would also be in line with

a literal interpretation of the statute‟s text, as the word “consultation” is defined as “[a]

conference in which the parties consult and deliberate; a meeting for deliberation or

discussion.” (Oxford English Dict. Online (2016) <http://www.oed.com> [as of Nov. 23,

2016].) In this case, no meeting occurred at all, and the IAFF‟s ability to speak at the

publicly noticed meeting is not an adequate “consultation” with the City. (See

Organization of Deputy Sheriffs v. County of San Mateo (1975) 48 Cal.App.3d 331, 338

25

[consultation with employees before commission hearings found sufficient consultation

in good faith under § 3507].)

Lastly, we are also not convinced by the City‟s argument that a different definition

should apply, because under PERB‟s current interpretation if the parties reach an impasse

on whether to proceed with the ballot measure repealing binding arbitration, the impasse

would be submitted to binding arbitration. This hypothetical scenario is not before this

court and was not before PERB.7

c. Constitutional Issues

Next, we find that PERB‟s interpretation of section 3507 does not violate the

charter city home rule provisions of the California Constitution and the constitutional

authority of the City Council to propose charter amendments to City voters.

“The California Constitution sets forth the home rule doctrine, which gives the

chartered cities the power to „ “make and enforce all ordinances and regulations in

respect to municipal affairs, subject only to [the] restrictions and limitations provided in

their several charters . . . .” (Cal. Const., art. XI, § 5, subd. (a).)‟ ” (International Assn.

of Firefighters, Local 230 v. City of San Jose (2011) 195 Cal.App.4th 1179, 1197.)

7

As noted before, PERB specifically acknowledged this in its decision, stating:

“We leave for another day questions not presented here, for example, the extent to which

disagreements unresolved during the consultation process are properly the subject of any

dispute resolution processes established for treating collective bargaining disputes arising

under MMBA section 3505 over wages, hours and other terms and conditions of

employment.” Additionally, as PERB points out in its respondent‟s brief, article V

provided that binding arbitration was limited to “[a]ll disputes or controversies pertaining

to wages, hours, or terms and conditions of employment which remain unresolved after

good faith negotiations.” The actual provision regarding binding arbitration is not a

controversy involving wages, hours, or terms and conditions of employment. Rather, it is

provision regarding the procedure to be used when resolving such disputes. Therefore, it

seems unlikely that the City‟s fear that binding arbitration may itself become the subject

of binding arbitration will come to fruition.

26

Article XI, section 5, subdivision (b) of the California Constitution provides that

city voters have the “plenary authority” to provide in their city charters “the manner in

which, the method by which, the times at which, and the terms for which the several

municipal officers and employees whose compensation is paid by the city shall be elected

or appointed, and for their removal, and for their compensation, and for the number of

deputies, clerks and other employees that each shall have, and for the compensation,

method of appointment, qualifications, tenure of office and removal of such deputies,

clerks and other employees.”

The California Supreme Court has considered the constitutionality of requirements

to meet and confer with labor organizations in chartered counties and cities. In Los

Angeles County Civil Service Com. v. Superior Court (1978) 23 Cal.3d 55, the court

considered the constitutionality of the MMBA‟s requirement to meet and confer

regarding layoff rules. There, the commission asserted that the meet and confer

requirements of the MMBA irreconcilably conflicted with its charter requirement that it

hold a public hearing before amending its rules, and that its unique status as an

independent administrator of the merit system would be threatened if it was required to

bargain. (Id. at p. 65.) The court held that the “meet-and-confer requirement can coexist

with the charter-mandated hearing” (ibid.), and the commission‟s fear that its neutral

status would be compromised was unfounded. The court concluded that it saw “no

constitutional barrier to requiring the county here to meet and confer with employee

representatives before amending civil service rules that govern layoff procedures.” (Id. at

p. 67.)

The California Supreme Court also considered and rejected a similar argument in

Seal Beach, supra, 36 Cal.3d 591. In Seal Beach, the court held that there was “[n]o . . .

conflict . . . between the city council‟s power to propose charter amendments and

section 3505. Although that section encourages binding agreements resulting from the

27

parties‟ bargaining, the governing body of the agency—here the city council—retains the

ultimate power to refuse an agreement and to make its own decision. [Citation.] This

power preserves the council‟s rights under article XI, section 3, subdivision (b) [of the

California Constitution]—it may still propose a charter amendment if the

meet-and-confer process does not persuade it otherwise.” (Id. at p. 601, fn. omitted.)

The court also emphasized that “there is a clear distinction between the substance of a

public employee labor issue and the procedure by which it is resolved. Thus there is no

question that „salaries of local employees of a charter city constitute municipal affairs and

are not subject to general laws.‟ [Citation.] Nevertheless, the process by which salaries

are fixed is obviously a matter of statewide concern and none could, at this late stage,

argue that a charter city need not meet and confer concerning its salary structure.” (Id. at

p. 600, fn. 11.)

Seal Beach dealt with the duty to meet and confer imposed by section 3505, not

the duty to consult in good faith imposed by section 3507. Nonetheless, we see no reason

why its reasoning should not apply here. Like the duty to meet and confer contemplated

in section 3505, the duty to consult under section 3507 does not create a conflict with the

charter city‟s power to propose charter amendments. Rather, it dictates the procedure by

which certain rules related to employer-employee relations must be implemented. As

articulated in Seal Beach, “[t]he law, however, is that a city‟s power to amend its charter

can be subject to legislative regulation.” (Seal Beach, supra, 36 Cal.3d at p. 598.) The

City retains the authority to suggest a repeal of binding arbitration. And once it has, in

good faith, consulted with those recognized employee organizations that have requested

to meet, it can ultimately reject any suggestions made by the organizations and proceed to

make its own decisions on the matter.

The City argues that Seal Beach should not apply, because the state‟s interest in a

local agency‟s rules governing the procedural matters listed in section 3507 is minimal.

28

The City also insists that the intrusive nature of interest arbitration weighs against

requiring the City to engage in the onerous task of engaging in a process comparable to

meeting and conferring as described by section 3505 prior to submitting the ballot

measure to voters.

In regard to the City‟s first argument, it appears that the City conflates the

procedures by which a public employee labor issue is resolved and the actual substance

of the issue. The state‟s interest in the procedures by which certain employer-employee

related rules and regulations under section 3507 are enacted is comparable to the state‟s

interest in the procedures by which labor disputes are resolved under section 3505.

Moreover, as was stated in Seal Beach, there is no conflict between section 3505—and by

logical extension, section 3507—and the city council‟s power to propose charter

amendments.

The lack of any conflict between section 3507 and the City Council‟s power to

propose charter amendments also undermines the City‟s argument that interest arbitration

raises particular constitutional concerns because of its intrusive, unique nature. To

support this argument, the City relies on County of Riverside v. Superior Court (2003) 30

Cal.4th 278. County of Riverside noted there is a distinction between regulating labor

relations and depriving the county of its authority to set employee salaries. (Id. at

pp. 287-288.) It then concluded that a recently enacted bill requiring counties and other

local agencies to submit to binding arbitration economic issues that arise during

negotiations with unions representing firefighters or law enforcement officers violated

provisions of the California constitution, because it deprived the county of its authority to

provide for the compensation of its employees and delegated to the private body the

power to interfere with county financial affairs and to perform a municipal function. (Id.

at p. 282.)

29

Unlike County of Riverside, we are not considering the constitutionality of a

binding arbitration ordinance or provision. We are construing whether PERB‟s decision

that binding arbitration is subject to the good faith consultation requirement set forth in

section 3507 is constitutionally sound. These are two completely different issues. And

we reiterate that section 3507 does not operate to curtail the City‟s power to propose

charter amendments. It also does not limit the City‟s power to reject or accept any

proposal or agreement that may come out of the consultation process. (Seal Beach,

supra, 36 Cal.3d at p. 601.) Compliance with section 3507 merely requires the City to, in

good faith, consult with recognized labor organizations before deciding how the pertinent

issue should be resolved. In the context of this case, the City still retains the ultimate

authority to determine if binding arbitration should be repealed.

d. Undermining the Political Process

The League argues that we should consider the undue burdens that may be placed

on cities if PERB‟s decision is upheld.

First, since this issue was raised only by the League in its amicus curiae brief

and not in appellant‟s opening brief, we decline to consider it. (Lance Camper

Manufacturing Corp. v. Republic Indemnity Co., supra, 90 Cal.App.4th at p. 1161, fn. 6.)

Furthermore, even if we considered the issue on its merits, we would find that it

fails. Certainly, the process by which a city council decides to place a matter on an

upcoming ballot can be a lengthy process, sometimes spanning months. Under the Ralph

M. Brown Act (§ 54950 et seq.) all city council actions must be made during publicly

noticed city council meetings or council committees. (§ 54950.) Each meeting has its

own set of procedural requirements, such as an advance notice and a publicly posted

agenda. (§ 54954.2, subd. (a).) Additionally, Elections Code section 9255 provides that

city councils may place certain charter amendments on the ballot only once every two

years during established statewide general elections. Under section 34458, the city

30

council must vote on whether to place the measure on the ballot at least 88 days before

the election.8

The portions of the Elections Code and Government Code that pertain to the

procedures through which cities may amend their charters do not provide for a

particularly expedient process. Undoubtedly, adhering to a requirement that cities must

also consult in good faith with recognized employee organizations under section 3507

adds an additional hurdle. It does not, however, render it impossible for cities to propose

charter amendments that raise issues that are subjected to the duty to consult in good faith

under the MMBA. And it does not justify ignoring the requirements of the MMBA.

As noted in Seal Beach, a city‟s power to amend its charter can be subjected to

legislative regulation. (Seal Beach, supra, 36 Cal.3d at p. 598.) When discussing the

requirement of a meet and confer imposed by section 3505 on a city‟s ability to propose

charter amendments, the Seal Beach court described section 3505‟s burden on the city‟s

democratic functions as “minimal.” (Seal Beach, supra, at p. 599.) As previously noted,

complying with the MMBA‟s requirements does not conflict with the city council‟s

power to propose charter amendments. (See Id. at p. 601.) Therefore, the League‟s

arguments pertaining to the alleged disruption in the political process caused by PERB‟s

decision has no merit.

e. Retroactivity of PERB’s Decision

The City and the League argue PERB‟s conclusion that cities are required to

consult over binding arbitration should not be retroactively applied, because it is a sea

8

PERB has requested that this court take judicial notice of the legislative history

of these statutes. We deny the request for judicial notice. Although the requested

materials are proper subjects of judicial notice (Evid. Code, § 452), we do not believe the

legislative history materials are relevant to our discussion (id., § 459; People ex. rel.

Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2).

31

change in the law the City could not have anticipated and would unfairly disenfranchise

the City‟s voters.

“ „The general rule that judicial decisions are given retroactive effect is basic in

our legal tradition.‟ [Citation.] Courts sometimes make an exception to this general rule

when the decision changed a settled rule on which the parties had relied.” (Brennan v.

Tremco, Inc. (2001) 25 Cal.4th 310, 318.)

The City argues that PERB‟s decision effectively overturns numerous federal and

state court decisions and PERB‟s own precedent. However, the precedents and rules that

are cited by the City concern whether binding arbitration is a mandatory subject of

bargaining under section 3505, not consultation under section 3507. (See DiQuisto,

supra, 181 Cal.App.4th 236.) PERB‟s decision that binding arbitration is subject to the

good faith consultation requirement of section 3507 does not represent a change in the

law. There was no previously settled rule that binding arbitration is not a mandatory

subject of consultation under section 3507.

The City also cites to cases where courts have been reluctant to invalidate votes of

the electorate based on procedural irregularities. (See Amador Valley Joint Union High

Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 242-244 [finding that

although initiative measure‟s title and summary were technically imprecise, they

substantially complied with the law]; Assembly v. Deukmejian (1982) 30 Cal.3d 638.)

PERB‟s decision, however, specifically clarified that its remedial authority did not extend

to invalidating the results of the municipal election. That remedy lies exclusively with

the courts in an action in quo warranto.9 (International Assn. of Fire Fighters v. City of

Oakland (1985) 174 Cal.App.3d 687, 698 [quo warranto writ is the exclusive method for

9

We discuss PERB‟s remedy in greater detail in the last section of this opinion.

32

appellants to attack amendments to the city charter based on city‟s failure to comply with

the MMBA].)

Based on the foregoing, we see no reason why PERB‟s decision should not be

applied to the City under these circumstances.

f. PERB’s Decision on Defenses Not Raised by the City

In its decision, PERB held that absent a valid defense, a party subject to the

MMBA‟s requirement to consult in good faith must defer action on matters subject to the

consultation duty until the duty has been exhausted. Accordingly, the decision went on to

consider—and reject—several possible defenses to the City‟s actions. The City argues

that PERB should resolve, not find, issues; therefore, its additional analysis into these

possible defenses, which were not briefed by either the City or the IAFF, was erroneous

and deprived the City of due process and fairness as it was unable to prove these defenses

before the ALJ and PERB.

First, we note that the City does not provide analysis or citations to legal authority

for its assertion that PERB‟s decision on these defenses violates due process and the

fundamental rules of fairness, aside to a lone citation to a PERB decision that states:

“[t]he province of the board is to resolve, not to find, issues.” (Tahoe-Truckee Unified

School Dist. (1988) PERB Dec. No. 668 at p. 10 [12 PERC ¶ 19081].) When points are

perfunctorily raised without adequate analysis and authority, we may treat them as

abandoned or forfeited. (People v. Stanley (1995) 10 Cal.4th 764, 793; Landry v.

Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699.)

Additionally, even if we considered the argument we would find it has no merit.

In J. R. Norton Co. v. Agricultural Labor Relations Bd. (1987) 192 Cal.App.3d 874, the

Agricultural Labor Relations Board (ALRB) concluded that the employer violated the

law when it refused to rehire members of a crew that were laid off, even though the

original complaint charged the employer with violating the law by laying off the crew in

33

the first instance. (Id. at pp. 886-887.) The appellate court held that the employer was

not advised that failing to rehire members was the activity it needed to defend itself

against, and the lack of notice violated the principles of procedural due process and

required the ALRB‟s findings to be set aside. (Id. at p. 888.)

In contrast to J. R. Norton, the unfair practice complaint here charged the City

with violating section 3507 when it failed to consult in good faith with the IAFF over the

proposed resolution. The issue—whether the City violated section 3507—was plainly

presented to the City. The City chose to focus on arguing that section 3507 did not

require it to meet with the IAFF, and even if it did, the IAFF waived its right to consult.

However, if a valid defense existed for the City Council‟s failure to comply with

section 3507 before it voted to place on the ballot the measure to repeal article V, then the

City did not violate the MMBA and the unfair practice charge would be unfounded.

Therefore, the issue of whether any valid defense existed for the City‟s acts was

encompassed within the broader issue of whether the City violated the MMBA. It was

necessary for PERB to address the possible defenses in order to correctly decide if the

City violated the MMBA. And it was not, like the new issue contemplated in J. R.

Norton, an issue that the City lacked notice of.

3. PERB‟s Conclusion Regarding Waiver and IAFF‟s Request to Consult

In its decision, PERB concluded the IAFF did not waive its right to meet and

consult with the City. This factual determination deviated from the finding made by the

ALJ. We find that based on a review of the record, PERB‟s conclusion regarding waiver

is supported by substantial evidence. Accordingly, it must be upheld.

a. Sufficient Evidence of IAFF’s Timely Request to Consult

The City focuses its attention on the IAFF‟s lack of action in the weeks before the

July 18, 2011 meeting. The City points out that between June 20 and July 18, 2011, the

IAFF did not formally request to consult with the City over the proposed ballot measure.

34

This argument ignores the IAFF‟s previous attempts to request a consultation with

the City over the proposed changes to article V. In July 2010, the IAFF specifically

stated—in writing—that it wished to consult with the City and asked the City to comply

with the requirements of the MMBA. The City claims the ballot measure contemplated

in 2010 was never adopted by the City Council, and there is no authority for the

proposition that the request to bargain remains valid for an indefinite period of time. Yet,

the City itself does not provide any support for its claim that a request for bargaining has,

in essence, an expiration date.

The City‟s argument that this earlier request to bargain somehow expired also

assumes the City Council‟s consideration of whether to repeal or amend the binding

arbitration provision in article V in 2010 and in 2011 were two separate processes. There

is ample evidence to the contrary. In August 2010, the City Council decided to direct its

staff to return in the fall with ideas and a timeline for considering changes to binding

arbitration after engaging in further study and outreach. In May 2011, City staff prepared

a report with information about the proposal to repeal the interest arbitration measure.

And in July 2011, the city attorney prepared a report on binding arbitration, referencing

the City Council and committee deliberations that began in August 2010 when the City

Council considered placing the measure on the November 2010 ballot. In sum, it appears

that the City began considering modifying or repealing the binding arbitration provision

in article V in 2010 and its consideration of the possible changes continued through 2011.

Additionally, during a City Council meeting in June 2011, a City councilmember

declared to the other members that he understood that the IAFF desired to negotiate with

the City over binding arbitration. That same councilmember then opined that instead of

negotiating, the IAFF should be limited to participating by addressing the City Council

during public meetings. Furthermore, the IAFF expressly made a second request to meet

and consult during the July 18, 2011 meeting. These requests were sufficient to place the

35

City on notice of the subject over which discussions are sought—provisions regarding

interest arbitration. (Newman-Crows Landing Unified School Dist. (1982) PERB Dec.

No. 223E [6 PERC ¶ 13162] (Newman-Crows).)

Citing to San Diego Adult Educators v. Public Employment Relations Bd. (1990)

223 Cal.App.3d 1124, the City notes that “[w]hen 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.” (Id. at p. 1136.) As a parallel, the City therefore argues that

the councilmember‟s statement during the June 2011 hearing that he understood that the

IAFF desired to negotiate was insufficient, because he was not the City‟s authorized labor

negotiator. Absent evidence showing how the councilmember came to this

understanding, the City argues it cannot be determined whether the entire City Council

was aware of the IAFF‟s desire to negotiate. The City also characterizes the

councilmember‟s statement as hearsay, because he did not testify during the PERB

hearing.

We find that even if we were to disregard the evidence that the councilmember

stated during the City Council meeting that the IAFF wished to bargain, there was still

substantial evidence supporting PERB‟s conclusion that the City Council was notified of

the IAFF‟s desire to negotiate. As we noted before, the IAFF made it clear to the City as

early as 2010 that it desired to meet with the City to discuss binding arbitration provision.

And the request was reiterated again by the IAFF in July 2011 during the City Council

meeting. The City continually failed to address the IAFF‟s requests, and indeed several

times rejected the notion that a meeting with the IAFF was required under the MMBA

over repealing binding arbitration.

The ALJ‟s proposed decision initially found that the IAFF had waived its right to

negotiate, because its request in July 2011 to meet and consult with the City was

36

untimely. PERB overturned this decision. We find that PERB did not err. “ „ “Courts

examine the defense of waiver carefully in order to ensure the protection of a party‟s

rights, especially when these rights are statutorily based.” ‟ [Citations.] Federal courts

use two basic tests when considering claims that a union has waived its right to bargain

with an employer: some follow the rule that a waiver must be made in „clear and

unmistakable‟ language [citations], and others look beyond the language of the contract

and consider the „totality of the circumstances‟ to determine whether there was a waiver

of rights [citations]. In California, the „clear and unmistakable‟ language test has been

preferred in cases involving public employees.” (Building Material & Construction

Teamsters‟ Union v. Farrell, supra, 41 Cal.3d at pp. 667-668.)

A labor organization can waive its right to bargain if it fails to make a timely

request. In Stockton Police Officers‟ Assn. v. City of Stockton (1988) 206 Cal.App.3d 62

(Stockton Police Officers‟ Assn.), the police union was found to have waived its right to

meet and confer under section 3505 over the City of Stockton‟s decision to change to a

different type of psychological counseling service. There, the City of Stockton advised

the police union about the city‟s desire to move to a different type of counseling service

and solicited input from the police union through a letter, requesting a response by a

specified date. Several months later, the City of Stockton approved the contract for

counseling services. (Stockton Police Officers‟ Assn., supra, at p. 64.) Several months

after that, the police union formally requested a meet and confer session concerning the

new contract. (Id. at p. 65.) The police union argued that it had not received the city‟s

letter until after the requested response date. (Id. at p. 66.) Nonetheless, the union

acknowledged that it had received the letter before the city council held a hearing on the

matter, before the new contract was approved. (Ibid.) The appellate court found that this

late request was untimely. (Id. at p. 67.)

37

Based on its actions, the IAFF did not clearly and unmistakably waive its right to

negotiate over binding arbitration. Unlike the situation contemplated in Stockton Police

Officers‟ Assn., the IAFF made at least two clear requests to negotiate with the City about

binding arbitration before the measure was passed, once in 2010 and again during the

meeting on June 18, 2011. This does not unequivocally reflect that the IAFF chose to

waive its rights. Nor was the later request, made on June 18, 2011, so untimely as to

render it a waiver. The final time the IAFF expressly requested to meet, there was still

nearly three weeks before the City‟s August 12, 2011 deadline to submit the measure to

the registrar‟s office. Each time the IAFF requested and made known its desire to

negotiate, the City did not respond and continued to deny that there was any obligation

under the MMBA to bargain. Thus, there is sufficient evidence to support PERB‟s

determination that there was no waiver.

In its opening brief, the City also notes that the IAFF was regularly meeting with

the City to bargain over other matters during the same time period. During these

meetings, the IAFF did not request to bargain over the charter amendment. As pointed

out by the IAFF, requesting to bargain over binding arbitration during these meetings

would have been inappropriate. The scope of those bargaining sessions, which were

sought under section 3505, was limited to certain matters that had been declared to be at

an impasse in February 2011 after certain negotiations with the IAFF. And as we

previously determined, the scope of representation under section 3505 is different than

the scope of representation under section 3507.

Lastly, the City maintains that Spitaleri testified during the PERB hearing that

he deliberately waited until the City Council made a decision regarding binding

arbitration before he requested to bargain. The City cites to a statement made by Spitaleri

during the PERB hearing in response to a question about why he did not make

suggestions or proposals to the City regarding the language of the proposed ballot

38

measure. After reviewing the transcript of the PERB hearing, we believe the City

misconstrues Spitaleri‟s statement. In response to the posed question, Spitaleri stated:

“Because the actual language, if I remember right, was not adopted. It was still in the

making. And we didn‟t know what they were going to do.” In context, Spitaleri was

explaining that he did not offer proposals to the City at the time, because he was unsure

of what course of action the City was going to take. Spitaleri‟s statement did not indicate

that he engaged in gamesmanship with the City to avoid requesting to bargain until the

City had decided what steps it was going to take.

b. PERB did not Shift the Burden of Requesting

Consultation to the Employer

The City and the League opine that PERB‟s decision goes against decades of

established law and articulates a new rule that an employer bears the burden to seek out a

labor organization to negotiate if the employer is aware of the labor organization‟s desire

to bargain. The League argues that the labor organization must make an affirmative

request. We do not believe PERB‟s decision goes against the established rule that a labor

organization must make an affirmative request to consult.

In its decision, PERB cited to Newman-Crows, supra, PERB Dec. No. 223E, for

the principle that the party seeking to meet and confer must initiate the process by

making a request to meet. The request need not be stated in particular terms, but it must

place the responding party on notice regarding which subjects are sought to be discussed.

In part, Newman-Crows cited to Schreiber Freight Lines (1973) 204 NLRB 1162

(Schreiber). In Schreiber, the National Labor Relations Board affirmed an administrative

law judge‟s decision, noting that “the inquiry as to weather a proper request has been

made need not be confined to communications between the parties; for, the Board has

also stated that the requirement is met where „it is clear from the entire situation that all

essential elements of a valid demand are present.‟ [¶] . . . it is apparent that the test of

39

whether a proper request has been made was not designed to invite meaningless „game

playing,‟ but merely to avoid a finding of a refusal to bargain against an employer

„without some indication given to him by [employees] or their representatives of their

desire or willingness to bargain.‟ In sum, where the employer is aware, through direct or

indirect means, of an intention to bargain by the employee representative, the inquiry is

ended.” (Id. at p. 1168.) “[T]he determination as to whether a particular communication

constitutes a proper request to negotiate is a question of fact to be determined on a case-

by-case basis.” (Delano Joint Union High School Dist. (1983) PERB Dec. No. 307E at

p. 7 [7 PERC ¶ 14146].)

In its decision, PERB followed Schreiber‟s reasoning and determined it was the

employer‟s awareness of a labor organization‟s desire to bargain that was crucial.

Additionally, the words chosen by the labor organization are not important, so long as it

is effectively conveyed to the responding party that the organization desires to negotiate.

We do not find that PERB‟s interpretation regarding the requirements underlying a

request to negotiate is clearly erroneous. In fact, it appears that PERB‟s decision is in

accord with its prior decisions. PERB‟s decision does not shift the burden to the

responding party to initiate a negotiation. Rather, PERB is merely reiterating that the

labor organization—here the IAFF—must in some way effectively convey to the

responding party (the City in this case) that it desires to negotiate. Additionally, the

particular language that is required in order to request a negotiation is not vital. The

decision still makes clear that the labor organization bears the duty of effecting such

communication to the public agency.

c. PERB’s Decision does not Require Clarification

Next, the City argues PERB erred when it held that “[w]here an employer believes

that the subject over which an employee organization desires to meet and confer exceeds

the employer‟s duty to meet and confer, or an employer is otherwise in doubt as to its

40

meet and confer obligation, the employer must seek clarification.” The City argues that

PERB mischaracterized its prior decisions when coming to this conclusion, and the

statement by PERB requires the City to seek clarification from labor organizations on

subjects that it believes clearly fall outside the purview of the scope of the duty to meet

and confer under the MMBA. We disagree with the City that PERB‟s statement on this

point is erroneous.

“[O]ne of the issues we consider on review is whether PERB followed its own

precedents in reaching its decision.” (California Teachers Assn. v. Public Employment

Relations Bd., supra, 169 Cal.App.4th at p. 1087.)

In its decision, PERB cited to several of its other decisions to support the principle

articulated above. In Healdsburg Union High School Dist./San Mateo City School Dist.

(1984) PERB Dec. No. 375 at pages 9-10 [8 PERC ¶ 15021] (Healdsburg), PERB

concluded that when there is an ambiguous or vague proposal that may or may not come

within the scope of representation, the objecting party must seek clarification of

questionable proposals. Failure to seek clarification of questionable proposals is a

violation of the duty to negotiate in good faith. Thus, Healdsburg held that if a proposal

is arguably negotiable in whole or in part, clarification was required. PERB further noted

that “[t]he process of clarification does not compel the employer to engage in substantive

negotiations on any subject not mandated by the Legislature.” (Id. at p. 10.)

PERB also cited to Rio Hondo Community College Dist. (2013) PERB Dec.

No. 2313E at page 13 (Rio Hondo), PERB concluded that “[i]f the employer refuses to

bargain without seeking clarification of the union‟s negotiability rationale, it fails to meet

and negotiate in good faith.” In Rio Hondo, the union sent a school district a letter

requesting to bargain over effects of a decision to install cameras on discipline and

evaluation procedures. (Id. at p. 8.) The district responded that it would not negotiate,

and the record did not show that the district made any attempt at seeking clarification

41

from the union about how the subject fell within the scope of representation. The district

argued that its refusal to negotiate was lawful, because the letter did not identify

negotiable areas of impact and failed to identify the effects of installing the cameras

except for the use of evaluating it for disciplining employees, which was nonnegotiable.

(Id. at pp. 8-9.) PERB rejected this argument.

In its decision in Rio Hondo, PERB laid out three options for a employer to take

when receiving a union‟s bargaining demand: “(1) accede to the demand and address the

union‟s concerns in negotiations; (2) ask the union for its negotiation justification, viz.,

seek clarification of (a) the areas of impact proposed for negotiation and (b) whether

these areas of impact are within the scope of representation; or (3) refuse the union‟s

demand. In choosing the third option, the employer does so at its peril if its refusal is

later determined to be unjustified.” (Rio Hondo, supra, PERB Dec. No. 2313E at

pp. 9-10.) Rio Hondo cited to Healdsburg and set forth that the proper place to clarify

bargaining demands was at the bargaining table itself. (Id. at p. 12.) And if following a

clarification the employer is assured that the union‟s negotiability rationale is faulty, the

employer can refuse to negotiate, having satisfied its duty to clarify under Healdsburg.

(Id. at pp. 12-13.)

The other decisions cited by PERB are similar. (Kern Community College Dist.

(1983) PERB Dec. No. 337E at p. 6 [7 PERC ¶ 14229] [“if the District was unsure as to

the object of the Association‟s requests, the duty to bargain in good faith behooved it as a

minimum to seek clarification of the Association‟s position”]; Jefferson School Dist.

(1980) PERB Dec. No. 133E at p. 11 [4 PERC ¶ 11117] [“the hearing officer‟s

instruction requires the employer receiving a proposal to make a good-faith effort to seek

clarification of questionable terms and proposals, to voice its reasons for believing that a

proposal is outside scope, and to enter into negotiations on those aspects of proposals

which it finally views as covered . . .”].)

42

Recent PERB decisions have also summarized the same principle set forth by

PERB in its present decision. In County of Santa Clara (2013) PERB Dec. No. 2321M,

PERB cited to Healdsburg and noted that a “party objecting that a proposal is beyond

scope of representation must make good faith effort at clarification by voicing its specific

reasons for believing proposal is outside the scope of representation and entering into

negotiations on those aspects of proposal which, after clarification, it views as

negotiable.” (Id. at pp. 31-32.)

Based on the foregoing, we do not believe PERB failed to follow its own

precedents when coming to its conclusion here. As in Rio Hondo, where the district

believed the union sought to negotiate over a non-negotiable subject, here the City had a

duty, as explained in Healdsburg and the other cases cited above, to voice reasons for

why it believed binding arbitration was outside the scope of representation. As

articulated in Healdsburg, the objecting party need not “wrestle to a fall with every

ambiguity, or search out every negotiable or objectionable word or phrase.”

(Healdsburg, supra, PERB Dec. No. 375 at p. 10.) And as stated in Rio Hondo, the

employer may ultimately refuse to negotiate following clarification. It may also avoid

clarification entirely, except it does so at its own peril if its refusal is later deemed to be a

violation of the MMBA. (Rio Hondo, supra, PERB Dec. No. 2313E at p. 12.)

We note that in this particular case, PERB concluded the City was required to

meet and consult with the union over the ballot measure repealing binding arbitration.

Therefore, it was not the City‟s failure to seek clarification that rendered the City‟s acts

unlawful. Rather, the basis of PERB‟s decision was the City‟s failure to meet and consult

over a matter that fell within the scope of representation under the MMBA.

4. Remedy

In its decision, PERB explained that it did not believe it had the remedial authority

to order the results of the municipal election to be overturned. That remedy lies

43

exclusively with the courts. (International Assn. of Fire Fighters v. City of Oakland,

supra, 174 Cal.App.3d at p. 698 [quo warranto writ is the exclusive method for appellants

to attack amendments to the city charter based on city‟s failure to comply with the

MMBA].) PERB, however, directed the City Council to rescind its July 18, 2011

resolution referring to voters the ballot measure repealing binding arbitration. PERB also

ordered the City to cease and desist from further unlawful conduct and post a notice

incorporating the terms of the order at all work locations where notices to unit employees

are customarily posted.

The City argues that PERB lacks the authority to direct the City Council to rescind

its prior resolution. As we explain below, we agree. However, we find that PERB does

possess the requisite authority to invalidate a resolution that violates the MMBA.10

a. PERB’s Broad Remedial Authority

Section 3509 grants PERB broad remedial authority. “The initial determination as

to whether the charge of unfair practice is justified and, if so, the appropriate remedy

necessary to effectuate the purpose of this chapter, shall be a matter within the exclusive

jurisdiction of [PERB] . . . .” (§ 3509, subd. (b).) In prior decisions, PERB has restored

the parties to the status quo as a remedy. (California State, supra, 51 Cal.App.4th at

p. 946.)

b. Doctrine of Separation of Powers Bars PERB from Ordering the

City Council to Rescind a Resolution

PERB and the IAFF opine that PERB‟s order directing the City Council to rescind

its July 18, 2011 resolution is not beyond its authority. Rather, PERB argues that this

order is within the purview of its broad remedial authorities and merely restores the

parties to the status quo before the resolution was passed in violation of the procedures

10

We requested the City and PERB to submit supplemental briefs addressing these

two issues.

44

set forth in the MMBA. The City disagrees; it argues that directing the City Council to

rescind its prior resolution, a legislative act, is in itself a legislative act that PERB cannot

compel. We agree with the City.

“Generally, a court is without power to interfere with purely legislative action,

in the sense that it may not command or prohibit legislative acts, whether the act

contemplated or done be at the state level [citation] or the local level [citation].

The reason for this is a fundamental one—it would violate the basic constitutional

concept of the separation of powers among the three coequal branches of the

government.” (Monarch Cablevision, Inc. v. City Council (1966) 239 Cal.App.2d 206,

211; Board of Supervisors v. California Highway Commission (1976) 57 Cal.App.3d 952,

961-962.) Similarly, PERB—acting as a quasi-judicial agency—cannot compel

legislative action without violating the separation of powers doctrine. (City and County

of San Francisco v. International Union of Operating Engineers, Local 39 (2007) 151

Cal.App.4th 938, 943 [“PERB is an expert, quasi-judicial administrative agency.”].)

PERB argues that given its broad discretion to fashion remedies, it has the

authority to order the City Council to rescind its resolution referring the ballot measure to

the voters. PERB cites to Vernon, supra, 107 Cal.App.3d 802. In Vernon, the appellate

court held that an anti-carwash rule implemented by the City of Vernon was adopted in

violation of the MMBA. The appellate court noted that “California courts have adopted

the private sector view that unilateral action constitutes a per se violation of the MMBA,

and must therefore be set aside until the „meet and confer in good faith‟ duty has been

met by the employer.” (Id. at p. 824.) The appellate court then affirmed, in part, a

peremptory writ requiring that the City set aside and rescind certain actions, because they

were the “result of unilateral actions undertaken by the City” that were void for

procedural violations of the MMBA. (Ibid.) In its discussion, the court held that “[T]he

rule, being unilaterally adopted by the City without prior notice to or meeting and

45

conferring with the Union, was void in its entirety for procedural violation of

Government Code section 3505.” (Id. at p. 828.)

Vernon, however, did not discuss the separation of powers doctrine. And although

the Vernon court affirmed in part the issuance of the writ requiring the City set aside and

rescind certain actions, the court also stated in its discussion that it was holding that the

actions taken by the City were void due to the procedural violations of the MMBA.

(Vernon, supra, 107 Cal.App.3d at p. 824.) Vernon was silent on the differences between

rescinding and invalidating (voiding) a legislative action. We believe there is a

difference between the two. Ordering a legislative body to enact or rescind legislation is

a different remedy than declaring that a legislative act is void or invalid.

PERB and the IAFF argue that El Dorado County Deputy Sheriff‟s Assn. v. County

of El Dorado (2016) 244 Cal.App.4th 950, 962 (El Dorado) is instructive. In El Dorado,

the County created a new classification for employees providing court perimeter security

and placed the new classification in a general bargaining unit. At the same time, the

county deleted several positions from the law-enforcement bargaining unit. (Id. at

p. 953.) The El Dorado County Deputy Sheriff‟s Association petitioned for a writ of

mandate with the trial court, arguing that the county violated its duty to meet and confer.

The association also argued that the county violated its local rules when it deleted

positions in the law-enforcement bargaining unit without giving notice to and consulting

with the association. (Id. at p. 960.) In part, the El Dorado court concluded that the

county violated its own rules (which in itself was a violation of the MMBA) when it

failed to meet with the association over the deleted positions. (Id. at p. 962.)

The El Dorado court then turned to examine the appropriate remedy. The

association argued that the court must invalidate the resolutions, which would have the

effect of directing the county to restore the deleted positions. (El Dorado, supra, 244

Cal.App.4th at p. 962.) The county argued that the court could not order such a remedy,

46

because it would either violate the separation of powers doctrine or interfere with the

county‟s management rights. (Ibid.) The separation of powers argument was premised

on the fact that restoring the deleted positions would affect the county budget. The El

Dorado court rejected the county‟s separation of powers argument. (Id. at p. 963.) It

held that 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.” (Ibid.)

In its decision, El Dorado distinguished itself from County of Butte v. Superior

Court (1985) 176 Cal.App.3d 693. In County of Butte, a county board of supervisors

reduced the sheriff‟s budget, eliminating many deputy positions. In order to halt the

proposed staffing reductions, the sheriff sued the county. (Id. at pp. 695-696.) In part,

the sheriff prayed for the trial court to issue a writ directing the board to rescind the

layoff notices and provide the necessary funding to the employees in the sheriff‟s

department. (Id. at p. 696.) County of Butte noted that the county‟s adoption of the

budget was a legislative function and under the separation of powers doctrine, a court is

without power to interfere in that process. (Id. at p. 698.) The El Dorado court

concluded that unlike the situation contemplated in County of Butte, it was “not

attempting to dictate legislation but instead [was] merely enforcing the manner in which

the County is permitted (by its own rules, in this instance) to legislate.” (El Dorado,

supra, 244 Cal.App.4th at p. 963.) The El Dorado court distinguished its decision as

being “concerned with whether the County proceeds according to law,” not with making

“legislative determinations for the county.” (Ibid.)

We disagree with PERB to the extent it argues that El Dorado can be interpreted

to hold that a quasi-judicial agency like PERB has the power to order a legislative body

to rescind a legislative act or affirmatively pass legislative acts. Such a principle is in

direct contradiction to the separation of powers doctrine. (Mandel v. Myers (1981) 29

47

Cal.3d 531, 551, fn. 9 [“[B]y virtue of the separation of powers doctrine courts lack the

power to order the Legislature to pass a prescribed legislative act”]; Sklar v. Franchise

Tax Board (1986) 185 Cal.App.3d 616, 624 [“ „[m]andamus will not lie to compel a

legislative body to perform legislative acts in a particular manner.‟ ”].) And we do not

believe PERB‟s characterization of El Dorado is accurate. In El Dorado, the court did

not direct the county to take legislative action. As stated in its discussion of the issue, the

El Dorado court ordered that the county‟s acts, taken in violation of the MMBA and its

own rules, be invalidated. (El Dorado, supra, 244 Cal.App.4th at p. 965.) Invalidating

the county‟s acts, which would have the effect of requiring the county to restore the

deleted positions, was not dictating legislation but was “merely enforcing the manner in

which the County is permitted (by its own rules, in this instance) to legislate.” (Id. at

p. 963.) In other words, the El Dorado court invalidated the county‟s acts and then

ordered the county “to proceed according to law and consistent with [the] opinion” in El

Dorado. (Id. at p. 965.)

PERB argues the separation of powers doctrine is not violated with its order

directing the City Council to rescind the resolution, because, like in El Dorado, it is not

directing the City Council to enact particular legislation. Rather, it is requiring the City

Council to rescind a legislative action taken in violation of the MMBA. This argument

lacks merit. If a passed resolution is legislative in nature, it necessarily follows that

rescinding the resolution is similarly legislative in nature. (See Hilton v. Board of

Supervisors (1970) 7 Cal.App.3d 708, 714 [“[S]ince the passage of a zoning ordinance is

a legislative act, it necessarily follows that the vacating of such an enactment (the relief

here sought) is likewise legislative in character.”]; Eller Outdoor Advertising Co. v.

Board of Supervisors (1979) 89 Cal.App.3d 76, 83 [“[W]e think rescinding the resolution

is a legislative act beyond the court‟s power to command, and therefore violative of the

doctrine of separation of powers.”].)

48

San Leandro Police Officers Assn. v. City of San Leandro (1976) 55 Cal.App.3d

553, 558, also relied on by PERB, is not instructive. In San Leandro, several labor

organizations and employees sought a writ of mandate compelling the city council to

enact an ordinance granting them certain benefits. (Id. at p. 555.) The appellate court

concluded the city council‟s acts had violated the MMBA. It noted that “[a]lthough the

judgment calls for the city council to adopt certain legislation, it does not direct the city

council to exercise its discretion in any particular manner. The judgment and writ must

be understood as leaving it open to the city council to eliminate the discrimination by any

lawful means. The city council remains free to extend or eliminate the management

incentive program, but it may not discriminate among its employees for exercising their

rights under the [MMBA]. It was proper to compel by means of a writ of mandate action

to correct the existing unlawful practice.” (Id. at p. 558.)

San Leandro relied on Glendale City Employees‟ Assn., Inc. v. City of Glendale

(1975) 15 Cal.3d 328 (Glendale). In Glendale, city employees negotiated a

memorandum of understanding that was passed by the city council. In part, the

memorandum of understanding contained a survey provision that required the parties to

conduct a joint salary survey of other jurisdictions, the intent of the survey being that

Glendale salaries would be above the averages in these jurisdictions taking into

consideration internal alignments and other considerations. (Id. at p. 332.) The city

council thereafter passed a salary ordinance that went against the memorandum of

understanding, setting salaries that were below average compared to the other

jurisdictions. (Id. at p. 333.) The appellate court held that the ordinance did not comport

with the memorandum of understanding and violated the city‟s duty under the MMBA. It

therefore concluded that mandamus should issue to direct the city to compute and pay

compensation to city employees using the formula set forth in the appellate opinion, and

49

directed that retroactive salaries and wages should be paid to the employees‟ attorneys as

attorney fees. (Id. at pp. 333-334.)

On a petition for review to the California Supreme Court, one of the arguments

advanced by the Glendale defendants was that mandamus could not lie to enforce the

memorandum of understanding. (Glendale, supra, 15 Cal.3d at p. 343.) The defendants

argued that the adoption of a salary ordinance was a legislative act, and a mandamus

could not compel a legislative action. (Ibid.) The Supreme Court rejected this claim,

noting that it was conceived based on the mistaken assumption that the trial court‟s

judgment had mandated the city to enact a new salary ordinance. (Id. at p. 344.) Rather,

the city‟s approval of the memorandum of understanding was itself the legislative act that

fixed employee salaries. Therefore, the writ did not require the enactment of a new

ordinance fixing salaries—which would be a legislative act. Instead, the writ “directed

the non-legislative and ministerial acts of computing and paying the salaries as fixed by

the memorandum and judgment. The use of mandamus in the present case thus falls

within the established principle that mandamus may issue to compel the performance of a

ministerial duty or to correct an abuse of discretion.” (Ibid., fns. omitted.)

We believe San Leandro misread Glendale. As described above, Glendale did not

hold that a writ of mandate can compel a legislative body to enact legislation. San

Leandro‟s conclusion that such mandamus could lie is therefore suspect, and we

respectfully disagree with its holding. Additionally, it is important to note that the writ of

mandate contemplated in Glendale did not—as specifically stated by the Glendale

court—force legislative action. Rather, Glendale expressly stated that it was upholding

the appellate court‟s judgment, because it considered the calculation of salaries in

accordance with the memorandum of understanding to be a ministerial act, not a

legislative one.

50

PERB cites to City Council v. Superior Court [(Santa Barbara County)] (1960)

179 Cal.App.2d 389 (Santa Barbara County), which we do not believe is dispositive.

There, the appellate court concluded that it could not compel the city to raise rates for

trash collection, which was a legislative act. (Id. at pp. 391, 394-395.) The court noted

that most cases which upheld interfering with legislative acts are “directed toward the

right to undo what the legislative or quasi legislative body has done, not toward directing

it to perform an act which is prospective in operation.” (Id. at p. 394.) Santa Barbara

County, however, did not explain what it meant by the “right to undo” what the

legislative body has done. (Ibid.) The court did not expressly state that the right to undo

what the legislative body has done somehow encompasses the right to direct the

legislative body to take legislative action to rescind or vacate its prior act.

Additionally, “undoing” the erroneously passed legislation can be accomplished

by means that are not offensive to the separation of powers doctrine. (See City and

County of San Francisco v. Cooper (1975) 13 Cal.3d 898, 916 [“in the absence of some

overriding constitutional, statutory or charter proscription, the judiciary has no authority

to invalidate duly enacted legislation”].) For example, a judicial body could declare

legislation void and invalidate it, as was done in El Dorado, supra, 244 Cal.App.4th at

page 963.11 Similar action was taken in Bowles v. Antonetti (1966) 241 Cal.App.2d 283,

where the appellate court considered whether a writ of mandate could compel the city

council to annul its resolution vacating a street, which was a legislative act. In Bowles,

the appellate court cited to Santa Barbara County, supra, 179 Cal.App.2d at page 394 for

the proposition that if a city council takes action that is fraudulent, or unreasonable and

arbitrary so as to constitute an abuse of discretion, courts may interfere with legislative

11

We also asked the parties to submit supplemental briefs addressing the issue of

whether PERB possesses the authority to invalidate a legislate act like the resolution

referring the measure to repeal article V to the voters.

51

action. (Bowles v. Antonetti, supra, at pp. 286-287.) The court held that “[u]ndoing what

the legislative body has done may be accomplished by a judgment declaring the

legislative act void.” (Id. at p. 286.) In contrast, issuing a mandate compelling the city

council to annul its resolution required the city council to perform legislative acts—

including passing a resolution annulling its previous resolution. Therefore, if issued, the

writ of mandate would compel the city council to perform legislative acts, which it

cannot do. (Ibid.)

We note that multiple other courts have, in the past, declared legislatively passed

ordinances or acts to be void due to procedural defects. (El Dorado, supra, 244

Cal.App.4th at p. 963 [invalidating county‟s act that violated local rule]; Vernon, supra,

107 Cal.App.3d 802 [rule that was unilaterally adopted without prior notice to or meeting

and conferring with labor organization was void for its procedural violation of § 3505];

see Williams v. City of San Bruno (1963) 217 Cal.App.2d 480 [affirming trial court‟s

decision that zoning ordinance was void due to the city‟s failure to comply with former

Gov. Code, § 65653]; Schofield v. City of Los Angeles (1932) 120 Cal.App. 240

[ordinance passed without submission to city planning commissioners declared void].)12

We believe that such a remedy may be proper in circumstances similar to the ones

presented here.

Lastly, PERB‟s reliance on its prior decisions ordering cities and city councils to

rescind rules found to be in conflict with the MMBA is also unavailing. For example, in

its supplemental brief, PERB cites to County of Imperial (2007) PERB Dec. No. 1916M

[31 PERC ¶ 120], where it considered the validity of a county‟s employer-employee

12

As we noted earlier, Vernon involved a peremptory writ that, in part, ordered the

city to rescind certain actions. (Vernon, supra, 107 Cal.App.3d at p. 806.) The doctrine

of separation of powers was not addressed in Vernon. Furthermore, in its analysis the

court reiterated that it found the resolution to be void since it was not passed in

compliance with section 3505. (Vernon, supra, at p. 828.)

52

relations policy that was adopted as a local rule by the county‟s board of supervisors.

There, PERB held that the provision was contradictory to and prohibited under the

MMBA. (Id. at p. 22.) It then ordered the county and its governing board and

representatives to rescind the rule. (Id. at p. 23.) The fact that PERB has, in its prior

decisions, ordered governing bodies to undertake what appears to be legislative action,

does not validate its current order. County of Imperial did not consider the applicability

of the separation of powers doctrine. And as noted, we have concluded that ordering

rescission of a legislative act is in itself a legislative act. The separation of powers

doctrine prohibits this remedy.

Thus, we conclude that PERB lacks the authority to compel the City Council to

legislate. Its order directing the City Council to rescind its prior legislative act was

therefore improper.

c. Effectiveness of PERB’s Remedy

The City argues that PERB lacks authority to issue an effective remedy, because

the exclusive process for challenging charter amendments is an action in quo warranto

under Code of Civil Procedure section 803. “An action in the nature of quo warranto is

derived from the common law writ used in England by the King‟s Attorney General to

test the validity of franchises or claims asserted by subjects of the crown. [Citations.]

Today, relief traditionally granted by the writ, such as a challenge based on purported

irregularities in the legislative process of a charter amendment which has taken effect,

must be accomplished through the command of section 803.” (Pulskamp v. Martinez

(1992) 2 Cal.App.4th 854, 859 (Pulskamp).) Accordingly, the City argues that PERB‟s

decision is simply advisory in nature.

We disagree and find Pulskamp to be instructive. In Pulskamp, the mayor of Los

Angeles inadvertently signed an ordinance passed by the city council authorizing a

special election to amend the Los Angeles city charter. (Pulskamp, supra, 2 Cal.App.4th

53

at p. 856.) The mayor discovered his error and vetoed the legislation. Despite the veto,

the city clerk announced that he intended to place the proposed amendment on the ballot

for the upcoming election. The mayor, along with a taxpayer, sought a writ of mandate

with the superior court seeking to stop the city clerk from placing the referendum on the

ballot. (Id. at pp. 856-857.) The trial court denied the petition, and the referendum was

passed by voters. (Id. at p. 857.)

Pulskamp noted that “when an action in quo warranto is not available, a private

citizen may proceed to seek relief by other means.” (Pulskamp, supra, 2 Cal.App.4th at

p. 859.) At the time the petitioners sought the writ of mandate, a quo warranto action

would not have been proper. The charter amendment had not yet been passed. The

petitioners‟ sole remedy, fixed by the facts existing at the time they commenced the

action below, was a writ of mandate with the superior court. (Id. at p. 860.) Therefore,

the petitioners had standing to appeal the trial court‟s denial of the petition for a writ of

mandate. (Ibid.)

At the time the IAFF filed its unfair practice complaint with PERB, an action in

quo warranto was not yet available. The election had not occurred and the charter had

not yet been amended. The IAFF could not have filed an action in superior court.

Furthermore, under section 3509, subdivision (b), the initial determination of whether an

unfair practice charge under the MMBA is justified is within PERB‟s exclusive

jurisdiction. The IAFF properly filed its unfair practice complaint against the City with

PERB.

Additionally, a declaration that the City Council‟s resolution is void effectively

returns the parties to the status quo ante. (Bowles v. Antonetti, supra, 241 Cal.App.2d at

pp. 286-287; see also El Dorado, supra, 244 Cal.App.4th at p. 963; Vernon, supra, 107

Cal.App.3d 802.) It has the affirmative effect of “undoing” the invalid act without

impermissibly infringing on legislative powers.

54

During oral argument, the City framed its claim that PERB‟s remedy is

ineffective, rendering its decision advisory, as a jurisdictional issue. Arguing that

PERB‟s remedy of rescission has no practical effect, the City maintained that under

Coachella Valley Mosquito & Vector Control Dist. v. California Public Employment

Relations Bd. (2005) 35 Cal.4th 1072 (Coachella Valley), PERB‟s inability to order relief

equivalent to an action in quo warranto divested it of its exclusive jurisdiction over the

matter at hand. In Coachella Valley, the Supreme Court held that “[i]n deciding whether

to entertain a claim that an agency lacks jurisdiction before the agency proceedings have

run their course, a court considers three factors: the injury or burden the exhaustion will

impose, the strength of the legal argument that the agency lacks jurisdiction, and the

extent to which administrative expertise may aid in resolving the jurisdictional issue.”

(Id. at p. 1082.)

Although the City repeatedly cited to Coachella Valley during oral argument, we

are unable to find a citation to this case and an analysis of the factors set forth therein in

the City‟s opening brief, appellant‟s reply brief, or supplemental brief. And the only

reference to PERB‟s alleged lack of jurisdiction is found in the City‟s reply brief, where

the City states in a conclusory fashion that “PERB‟s exclusive jurisdiction over alleged

MMBA violations does not extend to those matters over which it lacks the authority to

furnish relief equivalent to the relief that would be provided by a trial court.” Ordinarily,

we will not consider points raised on appeal for the first time in a reply brief or at oral

argument. (Sunset Drive Corp. v. City of Redlands (1999) 73 Cal.App.4th 215, 226;

Julian v. Hartford Underwriters Ins. Co. (2005) 35 Cal.4th 747, 761, fn. 4.)

Additionally, aside from the its argument that PERB is unable to order an effective

remedy, the City did not provide specific arguments or analysis of the three factors

discussed in Coachella Valley during oral argument or in its briefs. Points that are raised

55

that are not supported by reasoned argument and citations to authority may be deemed

forfeited. (People v. Stanley, supra, 10 Cal.4th at p. 793.)

Furthermore, Coachella Valley is distinguishable from the facts of this case. In

Coachella Valley, the Supreme Court considered whether the doctrine requiring

exhaustion of administrative remedies barred a complaint filed in superior court

challenging PERB‟s jurisdiction. (Coachella Valley, supra, 35 Cal.4th at p. 1077.) The

complaint was filed in the superior court after PERB filed an unfair practice charge, and

the main argument in the complaint was that PERB lacked jurisdiction to issue the unfair

practice charge, because the applicable limitations period for MMBA unfair practice

charges was six months. The Supreme Court noted that “exhaustion of administrative

remedies may be excused when a party claims that „the agency lacks authority, statutory

or otherwise, to resolve the underlying dispute between the parties.‟ ” (Id. at

pp. 1081-1082.)

The Supreme Court then concluded all three factors favored judicial intervention:

(1) although there was no showing that the parties would suffer unusual or irreparable

injury if it were required to litigate the unfair practice charge to completion before

obtaining a judicial resolution on the jurisdictional limitations issues, there was a

significant public interest in obtaining a definitive resolution to the fundamental legal

issue, (2) there was a strong and persuasive argument that the proper limitations period

was six months, contrary to PERB‟s decision, and (3) judicial intervention would not

deny the court of PERB‟s expertise, because the issues are purely legal and the court had

already received the benefit of PERB‟s view on the matter through its briefs. (Coachella

Valley, supra, 35 Cal.4th at pp. 1082-1083.) Thus, the Coachella Valley court concluded

the plaintiff was excused from exhausting its administrative remedies with PERB. (Id. at

p. 1083.)

56

In sum, Coachella Valley does not stand for the proposition that PERB is

necessarily divested of its initial exclusive jurisdiction if it is unable to order a certain

remedy, such as the invalidation of a charter amendment. Rather, Coachella Valley

discussed whether the parties in that particular situation were required to exhaust their

administrative remedies by going through PERB before filing a complaint with the

superior court. Here, the parties have essentially completed the process of exhausting

administrative remedies with PERB. Having exhausted administrative remedies, the City

now seeks to use Coachella Valley as a means to invalidate PERB‟s decision by arguing

PERB was divested of its jurisdiction in the interim. Coachella Valley did not discuss

this issue, and cases are not authority for propositions not considered. (In re Marriage of

Cornejo (1996) 13 Cal.4th 381, 388.)

The City‟s argument on this point also circles back to its claim that PERB‟s

ordered remedies are ineffective. In its briefs and during oral argument, the City has

maintained that PERB lacks authority to invalidate the ballot measure, and that authority

lies exclusively with the courts by a quo warranto writ. (International Assn. of Fire

Fighters v. City of Oakland, supra, 174 Cal.App.3d at p. 698.) Specifically, during oral

argument the City pointed to footnote 7 in Oakland, which states: “Appellants attempt to

separate the resolution proposing the amendments being placed on the ballot from the

enactment of the amendments themselves. Since the resolution was indisputably the first

step in the „purported enactment of . . . the amendment[s],‟ i.e., inextricably part and

parcel of the procedural regularity of the process of enactment, we view any attempted

distinction along these lines as bootless.” (Id. at p. 692, fn. 7.)

Here, however, it is clearly within PERB‟s initial jurisdiction to adjudicate alleged

violations of the MMBA. (City of San Jose v. International Assn. of Firefighters, Local

230 (2009) 178 Cal.App.4th 408, 413-414.) And we are in agreement with the City that

an action in quo warranto is the exclusive remedy to challenge the ballot initiative to

57

repeal article V of the city charter. The election, however, does not render the unfair

practice charge moot. It also does not cause PERB‟s decision to become merely

advisory. PERB was able to determine that the City engaged in an unfair practice. PERB

was also able to effectively order certain remedies. It was able to order the City to cease

and desist from refusing to meet with the IAFF‟s members prior to adopting ballot

measures to voters to establish or modify rules or regulations for the administration of

employer-employee relations, and to post at all work locations in the City a copy of the

notice describing PERB‟s orders. Furthermore, PERB was able to determine that the

City violated the MMBA when it failed to consult in good faith with the IAFF. As the

IAFF points out, it may separately elect to pursue the remedy of an action in quo

warranto with the trial court.

Additionally, although we have determined that PERB could not direct the City

Council to rescind its resolution, we have also found it would be within PERB‟s powers

to declare the resolution, passed in violation of section 3507, to be void. PERB did not

order this remedy in its decision. “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 the chapter, shall be a matter within the exclusive jurisdiction of the

board . . . .” (§ 3509, subd. (b).) We therefore remand the matter to PERB so that it may

determine whether this remedy should be ordered.

DISPOSITION

The Public Employment Relations Board (PERB) decision is annulled. On

remand, PERB is directed to strike its order directing the Palo Alto City Council to

rescind its action of July 18, 2011. The matter is remanded to PERB to order any other

appropriate relief consistent with the views expressed within this opinion. Each party

shall bear its own costs on appeal.

58

Premo, J.

WE CONCUR:

Rushing, P.J.

Grover, J.

City of Palo Alto v. Public Employment Relations Board

H041407

Trial Court: Santa Clara County Superior Court

Public Employment Relations Board

Decision No. 2388-M

Case No. SF-CE-869-M

Trial Judge: NOT APPLICABLE

Counsel for Petitioner: RENNE SLOAN HOLTZMAN SAKAI

City of Palo Alto Jonathan Holtzman

Charles D. Sakai

Randy Riddle

Erich W. Shiners

Counsel for Respondent: J. Felix De La Torre

Public Employment Relations Board General Counsel

Wendi L. Ross

Deputy General Counsel

Miles E. Locker

Senior Regional Attorney

Counsel for Real Party in Interest: MASTAGNI HOLSTEDT

International Association of David E. Mastagni

Firefighters, Local 1319, AFL-CIO Isaac S. Stevens

Jeffrey R.A. Edwards

Erich A. Knorr

John A. Melis

Counsel for Amicus Curiae: MEYERS, NAVE, RIBACK, SILVER

League of California Cities & WILSON

Supporting The City of Palo Alto Arthur A. Hartinger

Linda M. Ross

Jasleen Ahuja

City of Palo Alto v. Public Employment Relations Board

H041407